Eeeenteresting. It’s not often that one sees a major American political party defending the right to allow a federal jurisdiction to return to rampant criminality, deadly streets, and mayhem.
Earlier today, the Attorney General of Washington DC filed a lawsuit to force the withdrawal of the National Guard troops from the nation’s capital. Their presence over the last few weeks has resulted in dramatic drops in violent crime, including a near-elimination of homicides, and a restoration of order that allows for more public confidence in commerce and tourism. Brian Schwalb wants an end to it anyway:
“No American city should have the US military — particularly out-of-state military who are not accountable to the residents and untrained in local law enforcement — policing its streets,” said Brian Schwalb, D.C.’s attorney general, in a statement. “We’ve filed this action to put an end to this illegal federal overreach.”
Unlike in states, where governors have considerable authority over the deployment of the state guard, the D.C. National Guard is under the president’s direct command.
But the suit argues that the deployment of the local guard for public safety reasons, and without the mayor’s consent, violated Washington’s autonomy under the 52-year-old Home Rule Act.
The suit also makes an argument similar to the one the judge in California based his ruling on: that the deployment of National Guard troops in the city runs “roughshod over a fundamental tenet of American democracy — that the military should not be involved in domestic law enforcement.”
Frankly, the Home Rule Act is not going to matter much in these questions, at least not in the long run. For one thing, Donald Trump declared a crime emergency in DC before deploying the Guard to bolster the Metropolitan Police Department’s efforts to combat crime. Section 740 of that very law explicitly provides presidents with this authority to take control of MPD, and nothing in the act forbids presidents from deploying the Guard in a manner that parallels governors of states from doing the same. More broadly, DC’s Home Rule Act doesn’t grant the city fully autonomous jurisdiction over law enforcement and prosecution of crimes. That authority still resides with the federal government, and given its nature, primarily with the executive branch.
What about the Posse Comitatus Act? That deals more with separately sovereign jurisdictions — states — than it applies to federal jurisdictions such as Washington DC. That matters when discussing potential deployments in Chicago, Baltimore, and other places Trump has mentioned lately if governors do not cooperate. However, Politico’s legal analyst Aziz Huq argues that the PCA may not matter much in those cities, practically speaking:
Alas, the statutes that regulate domestic uses of the military are tangled, vaguely and carelessly framed and riddled with incoherences. The legal theory underlying the deployment of troops in Washington, D.C., was different from the one used for L.A. — and there is no certainty the same theory will be re-upped for Chicago.
Much of this ambiguity bubbles out of an 1878 statute called the Posse Comitatus Act. Ironically, it was first adopted to limit the federal government’s military enforcement of the Fourteenth Amendment, thus enabling the birth of Jim Crow. At least in theory, the law prohibits the president from unilaterally using troops to engage in policing or law enforcement—and so has become a bulwark for American citizens’ freedom from military subjugation.
Yet the Posse Comitatus Act’s riddled with gaps. For example, the 1878 measure only applies to the National Guard when they are fully “federalized,” rather than in “state active duty” status. Hence, the D.C. National Guard — which is commanded by the president — can, and in recent weeks has been, mobilized in its “state” form without triggering the law. Indeed, a recent executive order envisages creation of a more permanent “specialized unit” — perhaps capable of deployment beyond the Beltway. …
Worse, the 1878 Act allows for deployments when there is an “exception” in another statute — and there are at least 26 other statutes that act as such escape hatches. Some are barely relevant today, but there remains a smorgasbord of statutory options for a federal lawyer looking for ways to use the military. From the perspective of blue-state mayors and governors, this creates abiding uncertainty about not just whether, but also where and how, federal troops will be deployed.
Huq mainly reserves his pessimism on the Supreme Court and its orientation toward Trump. That seems like a stretch to me; John Roberts would likely have to be very convinced to go along with such exceptions, and perhaps Amy Coney Barrett and Brett Kavanaugh as well. However, those exceptions do exist, and more to the point, may not really be necessary where the federal government is the only sovereign in play — such as DC.
What makes this lawsuit even more interesting, though, is that it appears intended to undercut Mayor Muriel Bowser. The Washington Post editorial board praised Bowser late yesterday for recognizing the moment and cooperating with Trump to solve the crime issue rather than engage in counterproductive La Résistance stunts:
Third, by partnering rather than fighting, Bowser has a lot more sway over how the federal officers pouring into the city get deployed. Behind the scenes, the mayor has been talking with Trump, Attorney General Pam Bondi and White House Chief of Staff Susie Wiles. It’s better for the city to have a seat at the table than not.
Then there are the political considerations. Crime in the District has fallen substantially in recent years, but it remains unacceptably high. Too much disorder has been allowed to fester, undermining quality of life. Therein lies the trap for Democrats: They cannot dismiss crime simply because things are improving, or they risk portraying themselves as out of touch with reality. …
Her posture is not without risk in a city where Trump garnered just 6.47 percent of the vote last year. Bowser has been widely expected to run for a fourth term next year, and this could doom her in a Democratic primary. The politically expedient path would be to performatively fight Trump tooth and nail, but Bowser knows that is not what’s best for the city we all love.
As I wrote above … eeeeenteresting. Does Schwalb have mayoral ambitions? Is this lawsuit intended to eclipse Bowser politically and vault Schwalb into position for the election in 2026? At the very least, the two are clearly not on the same page. And if that’s the case, expect a Republican Congress and Trump to take a close look at that Home Rule Act with some amendments in mind — or perhaps a full repeal.
Editor’s Note: President Donald Trump is returning Washington, D.C. to the American people by locking up violent criminals and restoring order.
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