A Loophole That a President Could Drive an Army Through
Congress should end the interstate National Guard offensive that Trump launched in 2020
We’re entering the waning months of the 117th Congress, whose term ends in early January. If Congress is to pass any remaining reforms to deter another Jan. 6—or a more successful disruption of the transition of presidential power—now is the time. Otherwise, Jan. 6 will become a distant memory and a legislative nonpriority, even as it has made “thinkable” the previously “unthinkable.”
In August, I wrote that the events of Jan. 6 highlighted the need to revisit “the knotty issue of a president’s ability to deploy military force domestically during a presidential transition. This power is a double-edged sword.” Among several possible revisions of that presidential authority, I suggested, was “reform to an apparent ‘posse comitatus’ loophole that can be exploited to let the president easily bypass state governments’ objections to the local deployment of National Guard units.” That reform may sound boring and obscure, but it will remove both a potential threat to peaceful presidential transitions and a potential flashpoint in America’s increasingly bitter red-state-blue-state warfare.
The Posse Comitatus Act generally prohibits the use of federal military personnel in the enforcement of national, state and local law. Until recently, a president’s primary way around this ban was to invoke the rarely used Insurrection Act and declare a state the site of an unlawful rebellion against the state or federal government and the enforcement of the law.
But in June 2020, during protests in Washington, D.C., following the murder of George Floyd by a Minneapolis policeman, then-President Donald Trump successfully recruited national guard units to the nation’s capital from 11 states whose governors had agreed to send them—most of them Republican governors. These 3,900 guardsmen were tasked with helping maintain the peace—essentially, with enforcing the law—in the capital, particularly, according to the Department of Justice, “protecting federal functions, persons, and property.” The guard members further appeared, at least to some extent, to be under federal control.
This caused genuine legal head-scratching at the time. Under federal law, state National Guard units can indeed be placed under federal control for military assignments, for example—this was perfectly understood—but if these out-of-D.C. guard units were acting under federal control, they were now federal troops subject to posse comitatus and prohibited from enforcing domestic law. Was the president somehow invoking the Insurrection Act to permit their use to quell local unrest? Alternatively, if these national guard units weren’t acting under federal control, then on what legal grounds were they sent to operate in Washington, D.C., outside the legal jurisdictions of their own states?
In an explanation issued afterward, U.S. Attorney General William Barr stated that the guard had been deployed under Title 32, Section 502, a federal law designed mainly to let national guard units carry out federally required drills and field exercises at federal expense while remaining under state control. In particular, Barr cited Congress’ little-noticed 2006 addition to that law—perhaps meant to facilitate voluntary interstate Guard unit cooperation during Sept. 11-style disasters—that stipulated such training could include “support of operations or missions undertaken by the member’s unit at the request of the president or secretary of defense.” He argued that various state National Guards’ deployment to Washington, D.C., was such a mission and asserted, moreover, “Those units operated under the control of their respective state commanders.”
Strangely, perhaps the least alarming part of Barr’s explanation was his doubtful claim that the various National Guard troops had remained entirely under state control. The truly alarming element was his surprisingly plausible use of the Title 32 language to justify the active deployment of national guard units outside their own jurisdictions simply at the president’s request—a novelty that, if left unchecked, would effectively gut the Posse Comitatus Act.
After all, under Barr’s construction, these National Guard units remained under their respective states’ control and were not, therefore, federal military personnel—the only troops the Posse Comitatus Act applies to. Moreover, nothing in the logic of Barr’s Title 32 argument limits these traveling state National Guard units to deployments in Washington, D.C. Instead, on a straightforward reading, they could be sent to any state, including a state whose governor and legislature didn’t want them. Thus, a president seeking military enforcement of domestic law anywhere in the country while sidestepping concerns over posse comitatus would simply have to shop around for some friendly governors willing to part with a few National Guard units—which, by the way, the federal government would helpfully pay for.
Not surprisingly, this disturbing prospect has led legal scholars at the University of Texas School of Law and the Brennan Center for Justice to call for reform. Indeed, the idea of state National Guard units essentially invading other states at a president’s behest is a particularly appalling idea in our red-state-blue-state era; imagine if the president requested help from friendly state governors with the “proper” enforcement of, say, immigration, abortion or gun laws in a state whose politics the president didn’t like. Alternatively, imagine a defeated incumbent president requesting that some state National Guard units be on hand during Congress’ electoral count on a future Jan. 6—units not (theoretically) under the president’s control, but rather the control of friendly governors who shared, say, the president’s concerns about the validity of the election returns in key states.
Now, to be clear, the president can already “invade” a state—or Washington, D.C.—with other state National Guards by federalizing them and invoking the Insurrection Act. And in fact, the Insurrection Act’s broad powers could stand review, as I suggested in August, and as scholars at the Cato Institute and the Brennan Center for Justice have argued. Still, such reform requires care, since the act has been a force for righting local wrongs, as, for instance, when Presidents Dwight Eisenhower and John F. Kennedy used it to enforce school desegregation in the South.
But the Title 32 loophole in the Posse Comitatus Act should be closed directly by Congress, which opened the loophole with the troublesome 2006 clause Barr cited. Yes, a president trying to use this loophole against an unwilling state might be pre-empted by a successful court challenge, but that court battle would be a highly politicized event involving ostensibly conflicting congressional intent in Title 32 and the Posse Comitatus Act. The resulting ruling would inevitably damage the court with some significant segment of the populace.
To its credit, the U.S. House has added to its proposed 2023 National Defense Authorization Act new language that would obviate these harms by allowing the interstate deployment of National Guard units under Title 32 only with the permission of the state where they would be deployed (or the permission of the mayor in the case of Washington, D.C.). The proposed act was passed by the House in July and placed on the Senate calendar in early August. No formal action has been logged since.
Yet now is the time to take action, before this congressional term comes to an end on Jan. 3. With each week, public and congressional attention is pulled further away from the lessons of 2020 and 2021, including those of Jan. 6. And it’s always possible the next Congress, with different members, will see the defects discussed above as features, not flaws.
Copyright © The UnPopulist, 2022.
It may sound strange and absurd, but this reminds of similar situations before and during the American Civil War. It shows the importance of having a limited and smaller government.