DC’s push to control its own National Guard takes a big step forward
WASHINGTON — Democratic Del. Eleanor Holmes Norton had been trying in Congress for 28 years to transfer control of the D.C. National Guard from the U.S. president to the D.C. mayor — one of the city's most ardent pleas for local autonomy in the absence of outright statehood.
Without approval from the Pentagon, the D.C. government can't deploy its own National Guard for any task, as a state can. Not during a catastrophic flood, or during a pandemic. Not for crowd control or traffic control during major events.
Not on Jan. 6, when a mob of supporters of President Donald Trump overwhelmed D.C. and Capitol police at the U.S. Capitol — and it took the Pentagon more than three hours to send the D.C. National Guard for backup.
Now, nearly three decades after Norton began her efforts, that infamous day has provided the impetus to bring the District of Columbia closer than it has been before to obtaining control of its own National Guard.
On Thursday, the House Armed Services Committee passed a measure giving D.C. control of the Guard as part of the National Defense Authorization Act — the must-pass defense budget package. It marks the first time Norton's D.C. National Guard Home Rule Act has advanced through committee, in what she says represents the measure's best shot at becoming law. A Republican effort to strike it from the NDAA failed.
Beverly Perry, a special adviser to Democratic Mayor Muriel Bowser, said that the proposal is another step toward the District gaining full independence on the path to statehood and that she is optimistic about its passage.
The main hurdle, however, is that the Senate's version of the NDAA does not include the D.C. National Guard provision. And it remains to be seen whether an amendment to add it to the package could withstand Republican resistance and garner enough enthusiasm from moderate Democrats in the evenly divided chamber.
Sen. Chris Van Hollen, D-Md., who along with Sen. Thomas Carper, D-Del., is leading the D.C. National Guard Home Rule Act in the Senate, said he planned to offer the provision as an amendment to the NDAA before it goes up for a vote. He said he would also be pressing for its inclusion when the House and Senate negotiate the final version of the bill. A spokesman for Sen. Tim Kaine, D-Va., who sits on the Senate Armed Services Committee, said he also supports the D.C. National Guard provision.
Still, regardless of the hurdles, Norton called the progress a "milestone."
"The reason it's so important is understood by Jan. 6," she said. "The insurrection would have ended hours before it did, saving lives, not to mention injuries, if the D.C. government could have called out its own National Guard."
Both Jan. 6, 2021, and June 1, 2020 — the day federal police, reinforced by the D.C. National Guard, violently cleared peaceful racial justice demonstrators from Lafayette Square — have added unprecedented urgency to D.C.'s push for control of its National Guard.
But D.C. officials said it's about much more than those two days.
Chris Geldart, the District's deputy mayor for public safety and justice, said D.C.'s lack of control over its own National Guard has presented major obstacles for Bowser and other local leaders over the past year — even hampering their ability to respond to the coronavirus pandemic.
D.C. still relies on the National Guard to help staff coronavirus testing sites and mass vaccination clinics throughout the city, Geldart said. The D.C. guard, more than 2,700 strong, is composed of soldiers and airmen who live in D.C., Maryland and Virginia. But some members have been pulled by federal officials for missions that have nothing to do with D.C., Geldart said.
"There were times during our COVID response where I literally had to ask our National Guard commanding general, 'Who are you taking orders from here?' " Geldart recalled. "And his answer was — rightfully so, according to law — the president of the United States, not the District."
Geldart said the most glaring issue involves the multistep process Bowser and other leaders must go through whenever they request the city's National Guard, for matters ranging from local defense to preparing for inclement weather. The current chain of command requires several layers of approval from federal officials, including the secretary of the Army and the secretary of defense.
"In some instances, in the past, that (approval) happened relatively quickly," Geldart said. "But in other instances, it's really up to the administration in power in how quickly that process moves. And that's a major issue."
That's where Jan. 6 has been so telling, he said.
On that day, as rioters descended on the Capitol building, Capitol Police urgently requested the support of D.C.'s National Guard. The D.C. National Guard had been restricted to basic traffic control duties — but reassigning them to the Capitol took the Pentagon three hours to approve, "a delay it has never adequately explained," Van Hollen said.
"If the mayor had control, she could have just done it," Geldart said.
Despite D.C. officials' arguments that having control of the National Guard would have simplified the Guard's chain of command, Republicans on the House Armed Services Committee argued the opposite during a debate on Wednesday.
Rep. Trent Kelly, R-Miss., who introduced an amendment to strike the D.C. National Guard provision from the NDAA, said he believed that the authority should remain with the president and that giving the mayor the ultimate say made things more complicated, not less.
"I think all that will do is take away a capability and an opportunity for the D.C. Guard to respond quickly and without too many bosses, too many people who are in charge of one problem," Kelly said. "It will cause them to be unable to respond as quickly as they need to, as we witnessed on Jan. 6."
Rep. Anthony Brown, D-Md., a co-sponsor of Norton's bill and a member of the House Armed Services Committee, acknowledged that the proposal would not eliminate every chain-of-command challenge in D.C., given that numerous federal and local agencies are typically responding to major events in the city all at once. But federal control of a local militia, he said, defies the principle that local government knows local needs best.
"I am very much convinced that if Mayor Bowser had control of the D.C. Guard, we would not have seen the events that unfolded in Lafayette Square on June 1, 2020," Brown said in an interview. "You certainly would not have seen the National Guard there. ... And why? Because the mayor has a better sense of local conditions."
Elizabeth Goitein, co-director of the Brennan Center for Justice's Liberty & National Security Program, said critics who believe that transferring control of the D.C. National Guard to the mayor would deprive the president of the ability to call on those troops during an emergency are mistaken.
Just like in any other state, the president would still retain the authority to federalize the D.C. National Guard by invoking the Insurrection Act, a rarely used law that allows a president to send active-duty military to squash rebellions on American streets — or, like occurred in the 1950s, to enforce civil rights laws. National Guard troops can also be mobilized for federally funded missions.
Against the advice of military advisers, President Donald Trump briefly considered invoking the Insurrection Act to squash the Lafayette Square protest, which Goitein said would have been an abuse of the law. But ultimately Trump didn't have to invoke any law, since he already had control of the D.C. National Guard.
Trump then asked governors to send in their own National Guard troops to augment the D.C. troops, which 11 governors, overwhelmingly from Republican states, did — without Bowser's advance knowledge.
An amendment to the NDAA by Rep. Mikie Sherrill, D-N.J., would prevent presidents from being able to send one state's National Guard troops into another jurisdiction unless the troops are federalized through the proper legal channels.
The president, Goitein said, should not be able to have his own personal army to deploy for domestic law enforcement purposes at any time — "exactly the military police force that our framers were so concerned about."
"The president's command and control of the D.C. National Guard is a relic that is way outdated, that predates by almost 100 years the existence of D.C. local government," Goitein said. "There's no reason to continue it."