ArgumentWhy Were Out-of-State National Guard Units in Washington, D.C.? The Justice Department’s Troubling Explanation
Over the previous week, thousands of National Guard troops from states across the country arrived in Washington, D.C., as part of the Trump administration’s response to the largely peaceful protests taking place across the city. “But under what legal authority were they deployed to D.C. in the first place?” The mayor of Washington, D.C. asked Attorney General William Barr the same question – but Steve Vladeck writes that Barr’s response, that the deployment of the troops was under the authority of 32 U.S.C.§ 502(f), raises two vexing possibilities, neither of them reassuring: either Barr is wrong about 32 U.S.C.§ 502(f), or he is right.
Over the previous week, thousands of National Guard troops from states across the country arrived in Washington, D.C., as part of the Trump administration’s response to the largely peaceful protests taking place across the city. After a great deal of controversy—including an argument over and whether troops were allegedly kicked out of their hotels by D.C. Mayor Muriel Bowser—they have now departed back to their home states.
Steve Vladeck asks this question in Lawfare: “But under what legal authority were they deployed to D.C. in the first place?”
He adds:
The answer was not obvious, and the administration initially remained silent as to its reasoning. Now, in a letter to D.C. Mayor Muriel Bowser, Attorney General William Barr has cleared up that mystery, explaining that the out-of-state National Guard troops were there under the authority of 32 U.S.C.§ 502(f).
In solving one mystery, however, Barr unearthed several more. One of two things is true: Either § 502(f) does not authorize the use of out-of-state National Guard troops in the manner in which they were deployed in Washington last week, or it does—and is therefore a stunningly broad authorization for the president to use the military at any time and for any reason, including as a backdoor around the Posse Comitatus Act. Simply put, either Barr is wrong, or he’s right—in which case Congress should immediately close the loophole he’s identified (and, apparently, seized upon).
Vladeck concludes:
Ultimately, one of two things is true: Either § 502(f) does allow the federal government to use out-of-state National Guard troops as it did last week in Washington—for any purpose and under federal control—which is deeply concerning and crying out for some kind of legislative reform. Or it doesn’t, and upwards of 5,000 out-of-state National Guard troops were unlawfully deployed to Washington last week.
Either answer is unsettling, to say the least.
