District of Columbia National Guard

So I appreciate that argument.

I just wonder, at least one possibility for why that wouldn't be so strange is that at the time and now, the president can federalize the DC Guard and has authority under the Insurrection Act and other statutes.

And so to sort of say, "Well, the president is left less powerful than a governor," doesn't seem quite right.

You might have, uh, a Congress that thought the president can already call out, uh, the DC Guard and every guard in response to a true emergency, and we're just sort of filling in the, the, the blanks as to some of these more minor situations.

It, it's not actually clear to me, Judge Garcia, that in 1889, when the Militia Code was enacted, that the president could use the federalization statute in effect at that time to activate the DC National Guard.

The relevant federalization statute was still the Militia Act of 1795, which only spoke about federalizing state national guards.

If you look at the Supreme Court's recent decision in Trump versus Illinois, they construed the prong of the federalization statute that deals with federalizing state National Guards to, uh, assist with enforcement of the law, and the Court said that is a very, very narrow authority that the president can only invoke when the federal military is both legally authorized and factually unable to address the law execution problem with the regular military, okay? So that's a, an extraordinarily limited authority, and it would be quite surprising- If Congress had intended that limitation to apply on activation of the DC National Guard.

No state governor, of course, has to first exhaust the federal military before deploying the state National Guard to assist with law execution within the state.

concluding that violence and disorder in the district were undermining the proper and safe functioning of the federal government.

As part of a broader federal initiative to address that crisis, the President ordered the Secretary of Defense to mobilize the D.C. National Guard and to coordinate with state governors to bring in state guards in a Title 32 status to support the federal mission.

By any measure, that mission has been a striking success, with even the D.C. mayor acknowledging the dramatic decrease in violent crime since the deployments began.

More to the point, however, the deployments are also lawful.

Section 502F.

And the district's contrary arguments rest on an untenably cramped view of the president's authority under those statutes, a view that is inconsistent not only with the statute's text and history, but with decades of practice.

and one that would leave the DC National Guard unable to perform most of the vital functions traditionally performed by state national guards.

What's more, the district hasn't established any irreparable harm from these deployments, and the public interest strongly favors allowing them to continue.

So I appreciate that argument.

I just wonder, at least one possibility for why that wouldn't be so strange is that at the time and now, the president can federalize the DC Guard and has authority under the Insurrection Act and other statutes.

And so to sort of say, well, the president is left less powerful than a governor doesn't seem quite right.

You might have, uh, a Congress that thought the president can already call out, uh, the DC Guard and every guard in response to a true emergency, and we're just sort of filling in the, the, the blanks as to some of these more minor situations.

It's not actually clear to me, Judge Garcia, that in 1889, when the Militia Code was enacted, that the president could use the federalization statute in effect at that time to activate the DC National Guard.

The relevant federalization statute was still the Militia Act of 1795, which only spoke about federalizing state National Guards.

If you look at the Supreme Court's recent decision in Trump versus Illinois, they construed the prong of the federalization statute that deals with federalizing state National Guards to, uh, assist with enforcement of the law, and the court said that is a very, very narrow authority that the president can only invoke when the federal military is both legally authorized and factually unable to address the law execution problem with the regular military, okay? So that's a, an extraordinarily limited authority, and it would be quite surprising if Congress had intended that limitation to apply on activation of the DC National Guard.

No state governor, of course, has to first exhaust the federal military before deploying the state National Guard to assist with law execution within the state.

A couple other things.

In 2021, Congress passed and the President signed a law that makes it easier for the US Capitol Police to request assistance from the DC National Guard.

One of the many things that went wrong vis-a-vis the Capitol Police in the run-up to and on January 6, 2021, was this long delay in getting National Guard assistance to the Capitol, One small piece of that does appear to involve the fact that the chief of the Capitol Police was unable to request National Guard assistance on his own.

He had to get the consent of a series of other actors.

So right over the holidays, you were gone over Christmas.

And I can tell you that at the national level, you and the team were recognized for what you had done and the leadership that you provided to the Washington, D.C., D.C. District of Columbia National Guard.

From your perspective, how did it go?

Well, I can't really take much of that credit.