Letter to Hon. Adam Smith, Chairman House Committee on Armed Services, Hon. Jack Reed, Chairman House Committee on Armed Services, Hon. Mike Rogers, Ranking Member House Committee on Armed Services, and Hon. James Inhofe, Ranking Member House Committee on Armed Services - Norton, Van Hollen, Carper, Maloney, Brown Request D.C. Mayor be Given Control Over D.C. National Guard in NDAA

Letter

Dear Chairmen Smith and Reed and Ranking Members Rogers and Inhofe:

As the sponsors and lead cosponsors of the District of Columbia National Guard Home Rule Act (H.R. 657/S. 130), we respectfully request that you include the text of the bill in the National Defense Authorization Act for Fiscal Year 2023. We appreciate that the D.C. National Guard Home Rule Act was included in the House's version of the National Defense Authorization Act for Fiscal Year 2022 and look forward to working with you to pass this important legislation this year.

The D.C. National Guard Home Rule Act would give the D.C. Mayor the same control over the D.C. National Guard that the Governors of states and territories have over their National Guards. It would also give the President the same authority to federalize the D.C. National Guard that the President has to federalize all other National Guards.

Whereas the National Guards of the states and territories operate under dual federal and state/territorial jurisdiction, the D.C. National Guard operates solely under federal jurisdiction. The Governors of the states and the three territories with National Guards have the authority to command their National Guards, but the President has the authority to federalize them. The D.C. Mayor and the President should have the same respective control over the D.C. National Guard that the Governors and the President have over the National Guards of the states and territories.

The attack on the U.S. Capitol on January 6, 2021, and the events at Lafayette Square on June 1, 2020, are prime examples of why the D.C. Mayor should control the D.C. National Guard. During January 6th, the Trump administration refused to deploy the D.C. National Guard to the Capitol for several hours, likely costing lives and prolonging the attack. At Lafayette Square, the Trump administration used the D.C. National Guard and federal law enforcement officers to forcibly remove peaceful protestors for a presidential photo op. More recently, the D.C. government had to rely on the President to deploy the D.C. National Guard in preparation for trucker convoys in D.C.

Today, by far the most likely need to deploy the D.C. National Guard would be for natural disasters, such as hurricanes and floods, and to restore order in the wake of local civil disturbances. The D.C. Mayor, who knows D.C. better than any federal official and who works closely with federal security officials, should be able to deploy the D.C. National Guard for natural disasters and local civil disturbances. In the event of a large-scale attack on a federal facility like the attack on the Capitol, a D.C. Mayor who controlled the D.C. National Guard would almost certainly immediately deploy the D.C. National Guard to protect the facility. However, in the unlikely event that a D.C. Mayor did not deploy the D.C. National Guard, the President would have the authority to federalize and deploy the D.C. National Guard to do so. This is no different than the division of authority between a Governor and President in the event of a large-scale attack on a federal facility in a state or territory today.

Moreover, Presidential control over the D.C. National Guard creates a loophole by which a President can evade the Posse Comitatus Act, which limits the military's involvement in civilian law enforcement. The Department of Justice's Office of Legal Counsel has opined that when the D.C. National Guard is operating in "militia status (i.e., not in federal service)," even though it is an exclusively federal entity, the D.C. National Guard may be used for civilian law enforcement purposes without violating the Posse Comitatus Act.

Finally, the D.C. National Guard Home Rule Act would be a historic transfer of self-government powers to D.C. that Congress began with the passage of the D.C. Home Rule Act in 1973, when it delegated most of its authority over D.C. matters to an elected Mayor and Council. D.C. should have the same control over its local affairs as states and territories.

We appreciate your consideration of this important request.