The D.C. Attorney General, Brian Schwalb, has recently filed a lawsuit to sue for the deployment of the U.S. National Guard in Washington. The accusation alleges that President Donald Trump has violated the U.S. Constitution and federal law by mobilizing the U.S. military for local law enforcement purposes. The lawsuit comes at a dicey time for Schwalb as a House bill has recently been submitted to replace Schwalb as the AG with a presidential appointee This is a hot and heavy topic so let’s break it down.
NATIONAL GUARD TO D.C.
Early in August, Trump initiated his anti-crime plan to clean up Washington, D.C. by deploying the U.S. National Guard. As has been the case since Trump took office in January, widespread resistance has come full force in response to the administration.
Schwalb has called this deployment “unnecessary” and “unwanted”, something that undermines the autonomy of local authority in the city. D.C. Mayor Muriel Bowser has embraced a peculiar position in the midst of it all as she initially condemned the deployment as being costly and inefficient but has now agreed to collaborate with the President and his anti-crime surge efforts.
Data shows that D.C. succumbed to peak violent offenses in 2023 to include homicide, gun assaults, carjacking, etc. The Metropolitan Police reported that total violent crime in the city had a 35% decrease in 2024 from 2023. Comparatively, there’s been a 27% decrease in violent crime this year since 2024. Though this is preliminary data, it suggests a significant decline in the whole of violent offenses where D.C. has overwhelmingly suffered over the years.
The Hill and CNN report that the National Guard will remain in D.C. through December, with an anonymous officer telling AP News that not all of the present members of the guard will stay till then. Other states primarily led by the GOP have sent their own sector of the National Guard to assist.
ALLEGATIONS & FEDERAL COURT
Earlier this summer, Trump had deployed the National Guard and ICE agents to L.A. to suppress anti-immigration riots and begin the administrations deportation initiative. A federal judge in California recently ruled that it was illegal for the National Guard to be deployed to L.A. under the Posse Comitatus Act.
The act has also become part of Schwalb’s arsenal in the lawsuit, as he stated that the nearly 2,300 National Guard members are subject to the rule of the act. Sources suggest that this situation is different than others where the act might better apply, as the National Guard in D.C. is within the authority of the President.
Abigail Jackson, a White House spokesperson, told Axios that the guard had been deployed to the city with the order to protect federal assets and assist local law enforcement.
POSSE COMITATUS ACT
If we are to consider this as a substantial point from which to weigh the case of opposition, it’s necessary to understand what it actually means.
Generally, the President is not allowed to use the military as a domestic police force, as the Brennan Center explains. This nearly 200-year-old piece of legislation addresses military interference as something with the potential to thwart American democracy and civilian liberties. As you can imagine, it was originally crafted to safeguard from prior situations between American colonies and the British.
‘Posse comitatus’ is a Latin phrase. “Posse” meaning “to be able/have power” and “comitatus” meaning “county” are roughly combined to mean “to eliminate lawlessness”. As applied in our legislative repertoire, it states that civilians are tasked with eliminating lawlessness within local provinces – not soldiers from the military.
Originally passed in 1878, the Posse Comitatus Act emerged at the end of the Reconstruction era. The military was instructed to refrain from interfering with the implementation of Jim Crow in the South as civilian government in that region saw fit to authorize it. Obviously, the prior reason has changed, but the legislative foundation for enforcing the act remains important.
“Whoever, except in the cases and under circumstances expressly authorized by the Constitution or act of Congress willfully uses any part of the army or the air force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both.”
The foundation for this act is that nothing ought to impede the rule of civilian government, as the division of power of the military between Congress and the President is blatantly displayed in the Constitution, and the 3rd, 4th, 5th & 6th amendments. One caveat is that Congress is still allowed to use the military to combat domestic violence, to protect federal property, enforce federal laws and court orders on behalf of legislative allowances.
One example of this exercise of allowance occurred in 1981 as the U.S. faced a drug crisis. Law enforcement was found incapable of sufficiently stopping the inflow of drugs into the country so the National Guard was deployed to assist.
Nonetheless, there are specifications within the Posse Comitatus Act as to which branch(es) are covered by its’ jurisdiction. The U.S. Army and Air Force are covered under the Posse Comitatus Act, and the Navy and Marines are further restricted within legislation from instruction of the Department of Defense. On the other hand, the U.S. Coast Guard may act uncovered by the act as a police force unless they are grouped into the Navy during a time of war.
That said, the National Guard as a whole entity is allowed to operate as law enforcement if state law allows it or they are federalized by the federal government. Because of this, the guard is connected with both federal and state law unlike the other military sectors.
Title 32 Status explicitly highlights that the National Guard is not subject to the Posse Comitatus Act whether they may be serving federal interests. In the specific case with their deployment to D.C. by President Trump’s order, the sector of the National Guard in D.C. is always under the authority of the President.
WHERE’S THE DEBATE?
The argument proposed against Trump’s deployment of the National Guard is that the purpose of assisting local law enforcement with anti-crime efforts is illegal under the act and U.S. Constitution.
As we’ve already learned, the D.C. National Guard is specifically under the authority of the President. Though we should also consider the capability of local law enforcement in eliminating the surge of crime in the city. Copied from a section above – “Data shows that D.C. succumbed to peak violent offenses in 2023 to include homicide, gun assaults, carjacking, etc. The Metropolitan Police reported that total violent crime in the city had a 35% decrease in 2024 from 2023. Comparatively, there’s been a 27% decrease in violent crime this year since 2024. Though this is preliminary data, it suggests a significant decline in the whole of violent offenses where D.C. has overwhelmingly suffered over the years.”
The Washington Informer further reports that the size of the Metropolitan Police reached a half-century low in 2023, with a net loss of 450 sworn officers over the span of three years. The data seems to suggest that law enforcement in D.C. has been operating with small numbers of manpower in the face of rising crime until this year.
Of course, you are free to believe differently. This is simply the common argument used to validate Trump’s deployment of the National Guard to D.C.
WHERE DOES THAT LEAVE US?
There are a couple statutory exceptions to the Posse Comitatus Act, meaning, there are legal exceptions to the act that may allow action apart from its’ original ruling.
“Insurrection Act” – The President may deploy the military to suppress forms of insurrection and/or rebellion against the federal government in any state. The President may act with or without consent from the said state if it is unable or unwilling to enforce federal law.
Counterdrug Operations – Similar to the 1981 situation, the Department of Defense may support civilian agencies in thwarting a drug crisis in the country.
Stafford Act – In the event of a natural disaster, public health crisis and the like, this act allows for the mobilization of the military to assist and support civilians.
State Control – Of course, each state houses a sector of the National Guard to use for whatever need according to state and federal laws.
There are other examples throughout U.S. history where Presidents have mobilized the National Guard on a federal level (federalized). None have proven to be this arguably controversial, however.
Let this article not determine your own stance on the matter – read, review, and contemplate what your rational opinion might look like.
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Katelyn Sims is a senior at Howard Payne University, pursuing a Bachelor of Arts degree in social science with emphasis in American political studies, global studies and jurisprudence. She is also a student in the university’s Guy D. Newman Honors Academy, as well as a prominent member of the Student Speaker Bureau speech and debate team. Following graduation, Katelyn will pursue a career in the field of U.S. foreign policy.
Katelyn has worked as a news writer and marketing coordinator with Brownwood News since 2023. Her column The Truth Will Set You Free is intended for all people from all walks of life. Katelyn aspires to inform readers of major U.S. political and legislative activity with an unbiased analysis that engages with political ideologies on all sides of the aisle. She believes the public ought to exercise their free will to cultivate personalized opinions on controversial issues without the influence of mainstream media.
