The deployment has sent nearly 2,300 National Guard troops from seven states and D.C. into the District.
WASHINGTON — The deployment and deputization of the National Guard are unconstitutional and violate federal law, a new lawsuit filed by D.C. Attorney General Brian Schwalb Thursday alleges.
He’s suing the federal government to stop the deployment, which has sent nearly 2,300 National Guard troops from seven states and D.C. into the District. The suit argues it, along with the U.S. Marshals Service deputizing the guard to act as law enforcement, has become an involuntary military occupation that goes far beyond President Donald Trump’s authority and deprives the District of its right to self-governance.
“Deploying the National Guard to engage in law enforcement is not only unnecessary and unwanted, but it is also dangerous and harmful to the District and its residents. No American city should have the U.S. military — particularly out-of-state military who are not accountable to the residents and untrained in local law enforcement — policing its streets,” Schwalb said. “It’s D.C. today but could be any other city tomorrow. We’ve filed this action to put an end to this illegal federal overreach.”
Since the deployment and the federalization of D.C.’s Metropolitan Police Department on Aug. 11, National Guard units are patrolling local neighborhoods with firearms and have been authorized to perform law enforcement duties such as searches, seizures and arrests, according to the Office of the Attorney General. Because these troops are reporting through a military chain of command, the OAG argues, their deployment violates the Posse Comitatus Act and 10 U.S. Code section 275, both of which generally prohibit federal military forces from engaging in domestic policing.
Next, the OAG argues that the federal surge circumvents the Home Rule Act, which gives the District the right to govern itself. The Home Rule Act, passed by Congress in 1973, does not give the president free rein to participate in local law enforcement. And the Emergency Management Assistance Compact, which is federal law, allows D.C.’s mayor to request National Guard support from other states, not the president, according to the OAG.
Finally, the OAG said that since the National Guard hasn’t been called into active federal service, out-of-state troops should remain under state command and control. Yet, the federal government is commanding and controlling those additional troops, which the OAG alleges violates both the Constitution and federal law.
This suit comes days after a federal judge decided that Trump’s federalization and deployment of the National Guard against protests in Los Angeles was illegal. Trump has said repeatedly that he plans to eventually send the National Guard to police more cities, namely Chicago and Baltimore, despite local opposition.
As Schwalb files this lawsuit to defend D.C. home rule, the Washington Post reported Wednesday night that House Republicans are considering a bill that could remove him from his post. If passed, Schwalb, who announced earlier this week that he will run for reelection, would be replaced by a presidential appointee that would not need to be confirmed by the Senate.
