Legal gaps in the domestic deployment of the National Guard must be addressed

WAND stands with 32 organizations from across the political spectrum in urging the House Armed Services Committee to address weaknesses in the current command structure of the National Guard. Introduced by Rep. Mikie Sherrill (NJ-11), the DC National Guard Home Rule Act and the Consent for Interstate Deployment Amendment address issues with domestic deployment of the National Guard. These two amendments would transfer control of the DC National Guard to local, rather than federal, control, as well as clarify that state governors may not deploy National Guard units into other states and territories without those jurisdictions’ consent.

Dear Member of Congress:

The undersigned organizations, from across the political spectrum and focusing on a wide range of issues, urge you to support an amendment proposed by Representative Mikie Sherrill to this year’s National Defense Authorization Act (NDAA). Together with the District of Columbia National Guard Home Rule Act, which is included in the Chairman’s Mark at Sections 1071-1075, this amendment will address concerns triggered by the deployment of the National Guard in Washington, D.C. in June of last year, including the operation in Lafayette Square. Last year, the House Armed Services Committee held hearings that revealed critical gaps and loopholes in the existing laws governing National Guard deployment under Title 32. The House Committee on Oversight also held hearings on the Jan 6 insurrection which illustrated additional weaknesses created by the current command structure for the D.C. National Guard. These gaps and weaknesses threaten Americans’ safety as well as their constitutional rights, and Congress should act now to fix them.

The DC National Guard Home Rule Act

First, we wish to convey our support and appreciation for the inclusion of the D.C. National Guard Home Rule Act in the Chairman’s Mark, which would transfer control over the D.C. National Guard from the president to the mayor of Washington. In every other state and U.S. territory, the National Guard operates under local control unless and until it is called into federal service. Only the D.C. Guard is always under presidential command. This outdated arrangement is a relic from the era before D.C. had an elected local government.

It also serves to undermine the foundational principle of “posse comitatus.” The Posse Comitatus Act bars the use of federal military forces for domestic law enforcement except as expressly authorized by law. However, it applies to National Guard personnel only when they have been federalized. Despite the D.C. Guard being under permanent federal control, the Department of Justice has long endorsed the legal fiction that it can nonetheless operate in a non-federal “militia” status. The combined result of D.C.’s outdated command structure and the Justice Department’s questionable legal interpretation is that the president can use the D.C. Guard as a domestic police force whenever he wishes, creating a huge gap in the Posse Comitatus Act’s coverage.

Permanent federal control over the D.C. Guard also hampers its flexibility in a crisis, as was vividly demonstrated on Jan. 6. When the attack on the Capitol began, the mayor had to ask the Department of Defense to deploy the Guard, rather than ordering them to respond herself. It took over an hour for the executive branch to approve this request, and more than three hours before the authorization was communicated to the Guard itself.

Transferring control over the D.C. National Guard to the mayor of Washington will fix both of these problems. The president will still be able to take command of the Guard when necessary by calling it into federal service, but the Guard will then be bound by the Posse Comitatus Act, just like all other federal controlled military forces. Thus, it will only be allowed to engage in law enforcement as allowed by law. At the same time, the mayor will be able to use the Guard quickly and flexibly in an emergency.