Case Explained: Sending the National Guard into D.C. Is the Wrong Solution to a Crime Problem – Legal Perspective

Second, military forces have the wrong attitude about civilians. Law enforcement is trained to see civilians as citizens who deserve protection, except in the most extreme circumstances. Military personnel are taught to treat civilians as potential threats and to always be ready to respond. Crowd control—in other words, dealing with unruly citizens—is the primary law enforcement training the National Guard receives.

Finally, military personnel are untrained in the complexities of gathering evidence and building a case that will stand up in court. Indeed, nearly half the Police Academy’s 27-week curriculum is dedicated to criminal procedure. Instead, military personnel are trained to remove the immediate threat, which often involves actions that would prejudice a court case and undermine the rationale for their actions (removing criminals from the streets).

Q3: Does the president have the authority to take these actions?

A3: Probably. The president’s orders to use the D.C. National Guard in law enforcement appear to be legally sound, though this will likely be tested in the courts. D.C. is different from the rest of the country because the federal government has much more control.

Much of the discussion about using the military for law enforcement turns on the Posse Comitatus Act (PCA), a law that greatly restricts the use of federal troops in law enforcement. It was passed in 1878 after Reconstruction as a reaction to federal forces occupying and administering the former Confederate states and has been reaffirmed for 150 years. Americans have always been wary of the military’s involvement in civilian affairs. Military forces being involved in domestic law enforcement looks too much like martial law and military occupation.

The law provides exceptions for “cases and under circumstances expressly authorized by the Constitution or Act of Congress.” Presidents have sent in military forces to settle labor disputes, and courts have affirmed this presidential authority: the “strong arm of the national government may be put forth . . . to compel obedience to its laws.”

Using the National Guard raises separate legal questions because of its state connection. State governors command the National Guard in peacetime, and the National Guard is typically the first force outside of the police that communities call on. The courts have generally held that the PCA does not apply to the National Guard when not in federal service.

The president has direct control over the D.C. National Guard at all times because the district does not have a governor. The Department of Justice has long opined that the D.C. National Guard can operate without being subject to the PCA, but this claim has not been tested in the courts.

Q4: Can the president federalize the D.C. police?

A4: Yes. The president of the United States can use D.C.’s municipal police force, the Metropolitan Police, for “federal purposes” for up to 30 days, after which he needs a vote of Congress.

The administration stated that it has federalized D.C. police to “[maintain] law and order in the Nation’s seat of Government.” Under this broad mandate, the president will institute law enforcement approaches over the next month that he believes mayors of other major cities should implement. While there surely will be disagreements on the merits of specific reforms or practices, the Metropolitan Police is far better equipped than the military to address criminal activity in the city and engage with its 700,000 residents and 27 million annual tourists.

One specific duty identified in the executive order was the protection of national monuments and Federal property, a responsibility typically carried out by specialized agencies. D.C. has a plethora of federal law enforcement agencies as a result of hosting senior elements of the federal government. The list includes national agencies like the U.S. Marshals Service, Secret Service, and FBI, as well as agencies with defined jurisdictions, such as the Capitol Police over congressional grounds, Cathedral Police over the Washington National Cathedral, or Park Police over national parks. The D.C. police could reinforce these existing agencies. 

Q5: Won’t the military role be limited to support, and not law enforcement?

A5: Maybe. Initial reports had the National Guard providing support to the police, such as transportation and communications. This is similar to what troops have long done on the southwest border in support of the U.S. Border Patrol. It is not inappropriate but appears unnecessary. First, the D.C. police have 3,100 officers with 600 civilians in support. Adding 800 military support personnel likely exceeds operational needs and could result in a lot of standing around and boredom.

If the problem is a lack of support, the civilian economy can provide communications, transportation, and all manner of services at a much lower cost than the military.

Further, the mission could grow. In a Fox News interview, Secretary of Defense Pete Hegseth stated that the National Guard will “not be involved in law enforcement functions” while also asserting that they will have “wide latitude . . . [to take] necessary action to protect citizens of D.C. and to protect themselves.” Troops have accompanied Immigration and Customs Enforcement (ICE) on raids in other parts of the country, so such an expansion of the National Guard’s mission in D.C. is possible.

Q6: Are there better ways for the president to fight crime in D.C.?

A6: Yes. The first action should be bringing the police up to full strength, despite the president’s statements that D.C. has enough police. D.C. Mayor Muriel Bowser has set a goal of 4,000 officers. The city has fallen far short of that target for years, and the number of uniformed officers has been on a downward trajectory. The House recognized the centrality of the police by passing H.R. 2096, Protecting Our Nation’s Capital Emergency Act, by a bipartisan vote.