NDAA National Guard Amendments Coalition Letter to Congress

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September 3, 2021

NDAA National Guard Amendments Coalition Letter to Congress

Dear Congressman:

The undersigned organizations, from all political backgrounds and focusing on a wide range of issues, urge you to support an amendment proposed by Representative Mikie Sherrill to this year’s National Defense Authorization Act (NDAA). Along with the District of Columbia National Guard Home Rule Act, which is included in the President’s Mark in Sections 1071-1075, this amendment will address concerns over the National Guard deployment to Washington, DC in June of last year, including the operation on Place Lafayette. Last year, the House Armed Services Committee held hearings that revealed gaps and critical gaps in existing laws governing National Guard deployment under Title 32. The House Committee on Oversight also held hearings on the January 6 insurgency, which illustrated the additional weaknesses created by the current leadership. structure for the DC National Guard. These loopholes and weaknesses threaten Americans’ security and their constitutional rights, and Congress should act now to correct them.

The DC National Guard Autonomy Act

First, we wish to express our support and appreciation for the inclusion of the DC National Guard Home Rule Act in the Chairman’s Mark, which would transfer control of the DC National Guard from the president to the mayor of Washington. In all other states and territories of the United States, the National Guard operates under local control until called up for federal service. Only the DC Guard is still under presidential command. This outdated arrangement is a relic of the days before DC had an elected local government.

It also serves to undermine the fundamental principle of the “posse comitatus”. The Posse Comitatus Act prohibits the use of federal military forces for the enforcement of national law, except as expressly permitted by law. However, it only applies to National Guard personnel when they have been federated. Although the DC Guard is under permanent federal control, the Department of Justice has long endorsed the legal fiction that it can nonetheless operate in a non-federal “militia” status. The combined result of DC’s outdated command structure and the Justice Department’s questionable legal interpretation is that the president can use the DC Guard as a national police force whenever he wants, creating a huge void in coverage. the Posse Comitatus Act.

Permanent federal control over the DC Guard also hampers its flexibility in a crisis, as was clearly demonstrated on January 6. When the attack on the Capitol began, the mayor had to ask the Defense Department to deploy the guard, rather than ordering them to respond herself. It took more than an hour for the executive to approve this request, and more than three hours before the authorization was communicated to the Guard itself.

Transferring control from the DC National Guard to the mayor of Washington will resolve both of these issues. The President will still be able to take command of the Guard if necessary by summoning it to Federal Service, but the Guard will then be bound by Posse Comitatus Law, like all other military forces controlled by the Federal Government. Thus, he will only be permitted to engage in law enforcement to the extent permitted by law. At the same time, the mayor will be able to use the Guard quickly and flexibly in an emergency.

Amendment to Consent for Interstate Deployment

In addition, we support the amendment proposed by Representative Mikie Sherrill (D-NJ) which will clarify that state governors cannot deploy their National Guard units to other states or territories without the consent of those jurisdictions. This limitation is undoubtedly inherent in the Constitution. However, last June, former United States Attorney General William Barr asserted that 32 USC § 502 (f) – the law that allows National Guard units to operate in “hybrid status,” in which they can perform federal missions but remain under state command and control – allows governors to deploy their guard forces out of state even if the destination state or territory objects.

This unprecedented interpretation of the law threatens the fundamental principles of state sovereignty. If the President federalizes the National Guard, he can of course send them wherever he deems necessary. If the Guard operates under state command, however, there is no basis under our Constitution for a governor of one state to effectively invade another jurisdiction with his militia.

Barr’s interpretation also undermines the Posse Comitatus Act. In hybrid status, the guards are exempt from the law as they are under the command and control of the state, a key component of which is the governor’s ability to deny a given federal assignment. But if a governor can send his guard forces to any other jurisdiction, then the right to refuse no longer makes sense. All the president needs is a governor willing to freely use that state’s National Guard as a national police force across the country. Last summer, President Trump found eleven.

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There are, of course, legitimate reasons for the president to deploy the military nationally, such as providing disaster relief, repelling invasions, or enforcing civil rights laws. Congress has given the president broad powers to deal with these situations, and none of the above reforms will prevent a president from legally exercising those powers. Instead, they will fill dangerous loopholes in the law to prevent the National Guard from being abused, misused, or drawn into partisan politics. We urge you to support Rep. Sherrill’s amendment and thank you for your consideration.

Truly,

Advocating for principled action in government
Blue Wave Postcard Movement
Brennan Center for Justice at NYU Law School
Citizens for Responsibility and Ethics in Washington (CREW)
Texas-specific elections
Vote DC
Advocacy and dissent
Demand progress
Democracy 21
Franciscan Action Network
Freedom of speech for people
Government Accountability Project
Human rights first
Law enforcement partnership
Niskanen Center
Pax Christi United States
American people
Government Oversight Project
Protect democracy
Public citizen
R Street Institute
Rock the Vote Action Fund
Secure Electoral Network
Safe Families Initiative
Stand up america
Standing republic
Students against the suppression of voters
The workers’ circle
URGE: Unite for Reproductive and Gender Equity
Veterans for American Ideals
Win without war
Women’s action for a new direction


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