The roughly 2,000 National Guardsmen deployed to Washington, D.C. have been tasked with assisting local law enforcement, but the lines separating where the troops’ mission ends and the police officers’ begins could get blurry.
And with discussions of future deployments to Chicago or other cities — likely without permission or invitation of governors — legal issues around the troops could be more complicated in the future.
Pentagon Press Secretary Kingsley Wilson told reporters on Aug. 14 that the National Guardsmen “will not be arresting people,” but they are allowed to “temporarily limit the movement of an individual” under certain conditions. Because the operation is in Washington, the Posse Comitatus Act of 1878, does not apply because troops are under state activation orders, or “Title 32 status,” according to a news release. Also unique to Washington is a 1989 legal precedent that allowed the use of the National Guard in the city including for drug enforcement outside of the Insurrection Act.
Instead, the president is basically “the quasi-governor” so it’s within their power to use the National Guard for law enforcement — just as any other governor would, said Rachel VanLandingham, a former Air Force judge advocate and law professor at Southwestern Law School.
Training
Alex Wagner, former chief of staff to the Army secretary and assistant secretary of the Air Force for manpower and reserve affairs said he’s worried about the variety of training among the National Guard troops and how that impacts any events that may unfold.
“I’m concerned that despite their desire to do what’s right, they might be dragged into situations that they’re not prepared for and not trained for,” said Wagner, also a law and national security professor at Syracuse University.
Training for National Guard troops can change depending on local statutes and military occupational specialties, or MOSs, said Kate Kuzminski, deputy director of studies and the director of the military, veterans, and society program at the Center for New American Security.
“What we train our servicemembers for is a bias for action in a moment of crisis. Deescalation is not necessarily something that’s emphasized outside of specific career fields and MOSes,” she said, adding that concerns around a lack of deescalation training applies more to active duty troops.
“For the guard, there is more of an emphasis on missions unique to their location, whether that’s emergency response, disaster response — this is where I do have quite a bit of faith in the professionalism and training of guardsmen, regardless of what state they’re coming from,” Kuzminski said.
Lawful orders
Joshua Kastenberg, a former Air Force Judge Advocate General and professor of national security and criminal law, said if troops are given orders they feel are unlawful, it could be a “tricky” situation because the law presumes that all orders are lawful. This means that the onus is put on the person who disobeys it to prove that it’s unlawful.
Kastenberg said troops being able to temporarily detain someone but not technically arrest them is “artful wording.”
“The military cannot arrest and hold in custody, but can temporarily detain. Well, temporary detention is just custody by another name,” he said. “What you have is something that is potentially unconstitutional.”
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Kastenberg said that the July 2024 Supreme Court decision — which established that presidents cannot be held criminally liable for “official acts” while in office — means that the president, who is in the chain of command for the D.C. guard, cannot effectively be held accountable for unlawful conduct the same way that troops could be.
“Some lieutenant or a company commander, a captain of the guard or a sergeant, he or she is damned if they do and damned if they don’t when it comes to lawful orders,” he said. “Thanks to our Supreme Court, and putting it in the domestic operations realm, there is no command liability.”
Chicago and other cities
President Trump has indicated that he could deploy the National Guard to other cities, such as Chicago or Baltimore. Operations in those cities could face different rules and obstacles, since Washington is, uniquely, a federal city. Deployment to any other city would generally be at the request — or over the objections — of the state’s governor, similar to what occurred in California earlier this year.
“He could do what he did in California, which is federalize National Guard, but not have them do law enforcement — an order ostensibly just to do protection of federal buildings and resources,” VanLandingham said.
VanLandingham said a state governor could call for other guardsmen from other states to help with a declared national emergency like hurricane response which would be at the governor’s request. But sending troops into another state without their consent would be an escalation.
“If he sent troops in Chicago right now, and [decided to use] the insurrection act, Chicago is no different than it was two weeks ago, a month ago, a year ago. In fact, crime is down,” she said, adding that it would be “pure martial law, essentially domestic occupation in the U.S.”
The last time the Insurrection Act was invoked was 1992 when President George H.W. Bush sent troops to quell riots in Los Angeles. Priot to that, the act was invoked in 1957 by President Dwight D. Eisenhower in Little Rock, Arkansas and in 1962 and 1963 by President John F. Kennedy in Mississippi and Alabama to enforce civil rights laws.
President George W. Bush considered using the Insurrection Act in 2005 to take over the National Guard in response to Hurricane Katrina but ultimately decided against it.
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