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Cross-Ideological Coalition Urges Congress to Close Dangerous Loophole for D.C. National Guard

The District of Columbia National Guard Home Rule Act would prevent unchecked deployment of the Guard as military police, as seen in summer 2020.

Washington, DC — Today, a cross-ideological coalition of over twenty democracy reform and national security organizations urged Congress to pass the District of Columbia National Guard Home Rule Act (S.130/H.R. 657). The Act would transfer command of the D.C. National Guard (DCNG) to the mayor of Washington, D.C. and close a dangerous loophole that currently allows the president to direct the DCNG and invite other states’ National Guards to police Washingtonians. This threat to the democratic norm of keeping the military out of domestic matters was on full display last summer, when National Guard troops from D.C. and 11 other states flooded the nation’s capital under the direction of former President Trump.

In a letter to members of Congress, co-signing organizations—including the Brennan Center for Justice, Human Rights First, Project on Government Oversight, Protect Democracy, and R Street Institute—called on Congress to pass the District of Columbia National Guard Home Rule Act, introduced by Rep. Eleanor Holmes Norton (D-DC) and Sen. Chris Van Hollen (D-MD). The co-signers point out that the current command structure of the DCNG—which reports to the president and never operates under local control—leaves a loophole in the Posse Comitatus Act, which forbids the president from using the military to police civilians without congressional approval. The DCNG’s command structure can also delay effective deployment in a crisis, as happened on January 6, 2021, when it took several hours for the DCNG to receive approval from within the Executive Branch to respond to the riot at the Capitol.

As the letter states, “The District of Columbia National Guard Home Rule Act solves both of these problems by transferring control over the DCNG from the president to the mayor of Washington, D.C. Under this new framework, the DCNG will principally operate under local control, just like every other National Guard organization in the country.” The co-signers also note that the Act would not obstruct “the president’s ability to take command of the DCNG when necessary.”

“The National Guard in every U.S. state and territory is under local command unless federalized, and there is no reason for Washington, D.C. to be any exception,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law. “Bringing the D.C. National Guard under the command and control of D.C.’s mayor will ensure that presidential uses of the Guard comport with the limits and procedures established by Congress. At the same time, it will make the district safer by allowing local Guard forces to respond quickly to urgent matters.”

“Keeping the military out of domestic law enforcement is a democratic tradition over 300 years old, and is part of what has made our democracy so resilient,” said Christine Kwon, counsel with Protect Democracy. “Ensuring that the president cannot abuse and misuse the National Guard in our capital is critical to preserving that tradition.”