The Biden Administration’s Senseless Opposition to Congress’s Effort to Prevent Abusive National Guard Deployments
The brutal crackdown on nonviolent demonstrators on June 1, 2020, at Lafayette Square in Washington, D.C., and the attempted insurrection at the U.S. Capitol on January 6, 2021, provide important lessons about the need to pass reforms to how and when the National Guard may (or may not) be deployed domestically, its command structure for domestic deployment, and the Guard’s legal authority when it acts. The reforms below would close dangerous loopholes in the laws that govern domestic deployment of the National Guard and help prevent politically driven misuses of Guard forces. They also would uphold the foundational principle of posse comitatus by preserving the separation between the military and civilian government that is so crucial to the protection of civil liberties. Protect Democracy strongly supports the reforms below:
The Sherrill and Schiff amendments and the D.C. National Guard Home Rule Act are included in the House version of the Fiscal Year (FY) 2023 National Defense Authorization Act (NDAA). Protect Democracy urges Congress to pass these reforms in the final FY2023 NDAA.
In June 2020, President Trump deployed the D.C. Guard in response to largely peaceful protests against police brutality in Washington, D.C. He also asked several governors to send their own National Guard forces into D.C. against the wishes of the D.C. mayor. This large force of National Guard troops was used to perform a domestic policing function under presidential control, all without any statutory authorization. Furthermore, President Trump threatened to activate active-duty military troops across the country and pre-positioned the Army’s 82nd Airborne Division outside the nation’s capital, ready to deploy into the city at a moment’s notice.
On January 6, 2021, D.C. faced nearly the opposite problem: the D.C. National Guard’s paralysis during a crisis because of continued federal control over its deployment. In every American state, as well as Guam, Puerto Rico, and the U.S. Virgin Islands, National Guard forces are subject to gubernatorial control unless and until the president calls them into federal service. But in D.C., the National Guard remains subject to permanent federal control. On January 6th, this meant that the D.C. mayor could not quickly dispatch the D.C. Guard to reinforce Capitol Police and D.C. Metropolitan Police officers attempting to defend the U.S. Capitol. Instead, the need to seek federal approval of the D.C. Guard’s deployment resulted in a delay of several hours. The Guard did not arrive at the Capitol until after 5 p.m., at which point both chambers of Congress already had been secured.
These events demonstrate the urgent need for reforms to how and when the National Guard may (or may not) be deployed domestically, its command structure for domestic deployment, and the Guard’s legal authority when it acts.
The Sherrill Amendment: Bringing Title 32 in Line with the Constitution
In June 2020, the Trump administration took the unprecedented position that state governors acting under Title 32 of the U.S. Code can deploy their National Guard units into other jurisdictions without those jurisdictions’ consent. This radical interpretation of the law threatens state sovereignty and raises serious constitutional concerns. It also creates a dangerous loophole in the Posse Comitatus Act—which prohibits the military from enforcing civilian laws except in situations expressly authorized by the Constitution or Congress—because it means that the president can use the military for law enforcement purposes anywhere in the country so long as s/he has one willing governor.
An amendment proposed by Rep. Mikie Sherrill would require all interstate deployments of the National Guard under 32 U.S.C. § 502(f)(2)(A) to be approved by the chief executives of both the sending and the receiving state. It is a tailored solution to the previous administration’s misinterpretation of statutory law, and it reaffirms the basic constitutional principle that each state maintains its own sovereignty vis-à-vis other states. Until June 2020, that was the way that Title 32 deployments had always worked.
The Sherrill amendment would have no effect on the president’s ability to call the National Guard into federal service or to use Guard forces for law enforcement purposes anywhere in the country as authorized by Congress. That means the president would still be able to use the National Guard, with or without the consent of states, where necessary to enforce civil rights laws or to suppress insurrections.
The Sherrill amendment has passed the House three times as part of the House versions of the FY 2021, FY 2022, and FY 2023 National Defense Authorization Acts (NDAA). However, it has not yet been enacted as part of any final NDAA.
The D.C. National Guard Home Rule Act: Closing a Loophole in the Posse Comitatus Act and Improving Responsiveness in a Crisis
The Posse Comitatus Act is meant to ensure that the president does not use the military as a domestic police force. It therefore applies to National Guard forces only when they are called into federal service. In D.C., however, unlike in every other state or federal territory, the National Guard is always under the command and control of the president, even when not federalized. This arrangement—a holdover from the era before D.C. had its own government—creates a major loophole in the Posse Comitatus Act. It also can prevent the timely deployment of the D.C. National Guard during a crisis, as we saw on January 6, 2021.
The D.C. National Guard Home Rule Act would solve both of these problems and bring the law up to date by transferring control over the D.C. Guard from the president to the D.C. mayor, the city’s chief elected executive. Critically, the president would retain the authority to call the D.C. Guard into federal service when doing so may be appropriate, such as to enforce civil rights laws or suppress insurrections.
The D.C. National Guard Home Rule Act was introduced by Del. Eleanor Holmes Norton and Sen. Chris Van Hollen during the 116th Congress as H.R.1090 and S.3981 and during the 117th Congress as H.R.657 and S.130. It passed the House in 2021 as part of the House version of the FY 2022 National Defense Authorization Act (NDAA) but was not enacted as part of the final NDAA. The Act passed the House again in 2022 as an amendment to the House version of the FY 2023 NDAA.
The Escobar Amendment: Amending Title 32 to Prohibit Privately Funded Deployments of the National Guard
In June 2021, South Dakota Governor Kristi Noem used a private donation from a Tennessee businessman to fund the deployment of 50 members of the South Dakota National Guard to patrol the U.S.-Mexico border in Texas. This unusual operation sets a worrying precedent. Regardless of Governor Noem’s motives, it suggests that National Guard personnel essentially are mercenaries who may be deployed on the whim of an individual willing to pay for their operations.
Members of the National Guard should not be treated as soldiers for hire. Doing so threatens to undermine public faith in the military and morale among Guard members. It also reduces transparency and hinders accountability. Congress should amend Title 32 to prohibit privately funded interstate deployments of the National Guard. A provision proposed by Rep. Veronica Escobar will address this issue by prohibiting privately funded interstate deployments of the National Guard, except in cases of natural disaster covered by the Stafford Act.
An amended version of the Escobar Amendment was enacted as part of the final FY 2022 National Defense Authorization Act (NDAA). Protect Democracy is advocating for updates to the amendment that would preserve the original intent of the amendment.
The Schiff Amendment: Preventing Misuse of Military In Domestic Law Enforcement
The Posse Comitatus Act prohibits the military from enforcing civilian laws except in situations expressly authorized by the Constitution or Congress. From time to time, however, the military has engaged in domestic law enforcement activity, including the collection of evidence, without the necessary authorization. That evidence, despite its collection under unlawful circumstances, nevertheless has been included in a number of legal proceedings.
The Schiff Amendment would change that. Schiff’s proposal—known also as the Strengthening the Posse Comitatus Act—would prohibit the use during legal proceedings of evidence that was collected by or with the assistance of members of the armed forces in violation of the Posse Comitatus Act. This would help to ensure accountability for violations of the law. Moreover, by making clear to military and civilian government officials that they cannot benefit in court from misusing the military on U.S. soil, in violation of the Posse Comitatus Act, this exclusionary rule would help prevent such violations in the first place.
Schiff introduced this proposal in 2020 as H.R.7297, the Strengthening the Posse Comitatus Act. The bill has passed the House twice as an amendment to the House versions of the FY2022 and FY2023 National Defense Authorization Acts.
Protect Democracy advocates for reforms to the laws that govern domestic deployment of the military as part of an ideologically diverse coalition of organizations.
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