National Guard Civil Support in the District of Columbia

National Guard Civil Support in the District of Columbia

February 23, 2021
National Guard Civil Support in the District of Columbia
The use of the National Guard in various contexts within
to war or national security crises, conflicts, and
the District of Columbia (DC) has raised congressional
emergencies under the following authorities:
questions regarding the authorities and mechanisms for
requesting, activating, and using the National Guard to
 Full Mobilization (10 U.S.C. §12301(a))
support civil authorities. This In Focus describes the
 Partial Mobilization (10 U.S.C §12302(a))
National Guard, relevant mechanisms for its activation,
 Presidential Reserve Call-up (10 U.S.C. §12304)
certain legal considerations, and aspects of its use to
 Pre-planned Missions (10 U.S.C. §12304b)
provide law enforcement support in Washington, DC.
Federalization
The National Guard
The President can federalize the National Guard as the
The National Guard is descended from colonial-era militias
organized militia to become a component of the armed
that existed prior to the adoption of the Constitution. The
forces in response to insurrection, invasion, rebellion, or to
Constitution recognizes the existence of, and gives the
enforce the law during such events.
federal government limited authority over, the militia
(Article I, §8, cls. 15, 16; Article 2, §2). The U.S. Code
Insurrection. If there is an insurrection in a state against its
defines the militia as “all able-bodied males at least 17
government, at the request of that state’s legislature, or
years of age and ... under 45 years of age who are, or who
governor if the legislature cannot be convened, the
have made a declaration of intention to become, citizens of
President may call the militia of another state into federal
the United States and of female citizens of the United States
service to suppress the insurrection (10 U.S.C. §251).
who are members of the National Guard” (10 U.S.C. §246).
Whenever the President determines that rebellion or certain
This definition also establishes two subcategories: the
unlawful actions against federal authority make it
unorganized militia and the organized militia. The
impracticable to enforce the laws of the United States in
organized militia is subdivided into the National Guard and
any state by judicial proceedings, the President may call the
the Naval Militia. The National Guard consists of the Army
militia of any state into federal service to enforce those laws
National Guard (ARNG) and the Air National Guard
or suppress those actions (10 U.S.C. §252). If rebellion or
(ANG). The ARNG and ANG are also reserve components
certain unlawful actions in a state impede the course of
of the armed forces – under the designations Army National
justice, prevent the execution of law, or deprive citizens of
Guard of the United States and Air National Guard of the
constitutional rights, the President may call the militia of
United States – along with the Army Reserve, Navy
any state into federal service to suppress insurrection (10
Reserve, Marine Corps Reserve, Air Force Reserve, and
U.S.C. §253). Under any of the preceding authorities, the
Coast Guard Reserve (10 U.S.C. §10101).
President may also use the other components of the armed
forces to suppress insurrection.
There are 54 National Guard organizations: one in every
state, plus Guam, Puerto Rico, the U.S. Virgin Islands, and
Invasion, Rebellion, Executing Federal Law. The President
the District of Columbia. State and territorial governors
may call members and units of the National Guard of any
each serve as commander in chief of their entity’s National
state into federal service to repel invasion by a foreign
Guard. The President of the United States is the commander
nation, suppress rebellion, or execute federal laws. Orders
in chief of the DC National Guard (DCNG).
for such service are to be issued through an affected state’s
governor or in the case of the DCNG, through its
Federal Activation
commanding general (10 U.S.C. §12406).
A federal activation occurs when a reserve component unit
or an individual is ordered to active duty for a federal
State Activation
mission, other than training, pursuant to Title 10 of the U.S.
A governor can activate members of the National Guard
Code. Federal activation of the National Guard can include
under state law to perform state active duty (SAD). The
either mobilization as a reserve component of the Army or
President may also request that a governor activate
Air Force or federalization of the organized militia. Upon
members of the National Guard under Title 32 of the U.S.
activation, military authority over mobilized or federalized
Code to perform full time National Guard duty (FTNGD)
units and personnel passes from the state or territorial
and conduct a federal mission (32 U.S.C. §502(f)).
governor to the President.
Command authority over units and personnel that conduct
such missions under Title 32 remains with the governor.
Mobilization
When performing SAD, members of the National Guard are
The President can mobilize the National Guard as a reserve
under the control of their governor and receive pay and
component of the armed forces for active duty in response
benefits in accordance with state law. When performing
FTNGD, they remain under their respective governor’s
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National Guard Civil Support in the District of Columbia
control, but the federal government provides pay and
supervision, administration, and control of the DCNG to the
benefits.
Secretary of the Army for its ARNG and Secretary of the
Air Force for its ANG. Under the memorandum, “The
Emergency Management Assistance
Secretary of the Army, after consultation with [the
Governors may employ their state’s National Guard to
Secretary of Defense] and subject to the direction of the
provide direct assistance to other states on a reimbursable
President… may order out the National Guard…to aid the
basis. This is done through an Emergency Management
civil authorities of the District of Columbia.” (Secretary of
Assistance Compact (EMAC; P.L. 104-321) process that
Defense Memorandum, October 10, 1969).
allows states to send or receive National Guard forces
pursuant to a standing agreement. Such agreements may
Law Enforcement Activity in the District of
include provisions allowing an assisting state’s National
Columbia and the DCNG
Guard to perform law enforcement functions, including the
Enforcement of criminal laws in the District of Columbia is
power to arrest, if specifically authorized by the receiving
the responsibility of a number of federal and local LE
state.
entities with distinct but often-overlapping jurisdictions.
For instance, the Metropolitan Police Department (MPD) is
the primary local LE agency in D.C., but it often operates in
The DC Mayor may execute interstate civil defense and emergency
tandem with, among others, federal LE charged with
management assistance compacts with state and territorial governors (D.C.
policing the Capitol building and grounds (U.S. Capitol
Code §§7–2209, 7–2332). As the DCNG “Commander-in-Chief ... in its
Police), the National Mall and the Ellipse (U.S. Park
militia status, the President stands in the position of a Governor of a State”
Police), and federal court buildings (U.S. Marshals
(Deputy Associate Attorney General opinion, April 4, 1989). Given the
Service). National Guard entities may provide LE
lack of mayoral command authority over the DC militia, it is unclear if the
assistance in the District of Columbia, though the scope of
mayor’s compacts or agreements could include receipt of National Guard
permissible assistance depends in part on whether they have
forces from a state or territory
been activated for federal service under Title 10 of the U.S.
Code. When the National Guard has been so activated, the

Posse Comitatus Act (PCA; 18 U.S.C. §1385), generally
National Guard Civil Support (NGCS)
precludes direct engagement in LE functions such as
NGCS is defined as “support provided by the National
search, seizure, and arrest, as the PCA prohibits willful use
Guard while in a [SAD] status or Title 32 status to civil
of “any part of the Army or the Air Force . . . to execute the
authorities for domestic emergencies, designated law
laws” except as authorized by the Constitution or Act of
enforcement, and other activities.” (Chief National Guard
Congress.
Bureau Instruction 3000.04). NGCS missions include law
enforcement (LE) activity and response to civil disturbance.
Exceptions to the PCA exist. For example, the insurrection
Law Enforcement Activity
provisions noted above authorize the President to deploy
Governors have authority to activate the National Guard to
the military to address significant civil unrest under certain
conduct LE activities when LE officials are not able to
conditions, and Congress has given statutory authority for
maintain law and order. Such activities are conducted while
the military (including National Guard in federal service) to
performing SAD. If requested by the appropriate authority,
provide a range of support to civilian LE such as training
governors may assist other states or federal entities by
and equipment (10 U.S.C. §§271-84). In the latter case,
allowing their National Guard to perform LE functions as
statutory language makes explicit that authorized support
part of a federal mission while on FTNGD. Under EMAC,
activity does not include “direct participation . . . in a
they can also assist other states while on SAD.
search, seizure, arrest, or other similar activity” unless
Civil Disturbance Operations
permitted elsewhere in law (10 U.S.C. §275).
The National Guard may assist civil authorities when they
National Guard entities in state service—that is, not
are unable to control civil disorder. The National Guard
activated under Title 10—are not subject to PCA
typically is the first military responder during such
restrictions. Thus, the extent to which they may support LE
disturbances. It typically responds to civil disturbance while
agencies and perform traditional LE functions is largely a
on SAD or FTNGD.
matter of state law and authorization, per National Guard
District of Columbia Civil Support
Regulation 500-5/Air National Guard Instruction 10-208.
The inapplicability of the PCA arguably includes the
The DCNG is under the control of the federal government,
DCNG operating in militia status or FTNGD, even though
and the President serves as “the Commander-in-Chief of the
DCNG is ultimately subject to presidential control. For
militia of the District of Columbia” (D.C. Code §49–409).
example, the Department of Justice has asserted that
The DCNG is analogous to the organized militia of a state
portions of the D.C. Code authorize use of DCNG in militia
(32 U.S.C. §101(4), (6)). An Executive Order delegated
status to support law enforcement activities of MPD (13
authority to the Secretary of Defense to command the
Op. O.L.C. 91 (1989)). Federal authorities may also permit
DCNG through its commanding general, “to supervise,
granting LE authority to DCNG in other circumstances
administer, and control” it, and “[s]ubject to the direction of
(e.g., 2 U.S.C. §1974 governing appointment as Capitol
the President as Commander-in-Chief, the Secretary may
Police special officers in an emergency).
order out the National Guard under title 39 of the District of
Columbia Code to aid the civil authorities of the District of
Columbia.” (E.O. 11485, 34 F.R. 15411, October 1, 1969).
Lawrence Kapp, Specialist in Military Personnel Policy
A Secretary of Defense memorandum further delegates
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National Guard Civil Support in the District of Columbia

Michael A. Foster, Legislative Attorney
Alan Ott, Analyst in Defense and Intelligence Personnel
IF11768
Policy

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