A court case challenging the governor’s deployment of members of the West Virginia National Guard to Washington, D.C., is set for a hearing.
The challenge to the deployment is set before Kanawha Circuit Judge Richard Lindsay at 9:30 a.m. Friday.
In August, after President Donald Trump declared a “crime emergency” in Washington, D.C.. Gov. Patrick Morrisey directed 300 to 400 members of the West Virginia National Guard to support roles there.
The lawsuit filed that same month by ACLU-West Virginia seeks to halt the West Virginia National Guard deployment, arguing that the governor’s order exceeds his constitutional and statutory authority.
The lawsuit was filed on behalf of West Virginia Citizen Action Group, which contends that the deployment is an unprecedented political act, not a response to a genuine emergency and violates West Virginia law that outlines specific, limited circumstances for out-of-state Guard deployments.
A response filed this week by the West Virginia Attorney General’s Office argues that the request for a temporary restraining order should be denied.
Generally, the Attorney General’s Office maintains that the West Virginia Citizen Action Group lacks standing to challenge the deployment by the governor.
“Plaintiff has failed to establish how it or any of its members were ‘directly injured’ or ‘directly affected’ by the D.C. Mobilization,” wrote lawyers for the state.
Furthermore, “Plaintiff has not alleged and cannot establish that it or any of its members have or will be injured by the D.C. Mobilization, much less immediately and irreparably so.”
The Attorney General’s filing also suggests that an order by the judge against the governor’s order would amount to judicial overreach:
“In other words, Plaintiff asks this Court to take command of the National Guard for as long as it takes to get it redeployed to West Virginia or, in the alternative, to permit the Governor to continue in his role as Commander in Chief so long as he asks this Court for permission before each and every decision he makes outside of ‘existing geographic boundaries and scope of operations.'”
President Trump’s emergency order for D.C., which federalized the D.C. police force, was signed on August 11 for a 30-day period. It automatically expired Sept. 10 and was not extended.
Federal agencies and the National Guard have remained in D.C. following the declaration’s expiration, but they no longer have the authority to control the D.C. police.
The West Virginia National Guard has said deployment to Washington, D.C., could last until late November, although the timing could evolve.
The governor’s announcement noted that the mission would be funded at the federal level. That’s a Title 32 order, typically for natural disasters, where the National Guard remains under the control of the state’s governor but receives pay and benefits from the federal government for federal missions.
However, the ongoing federal shutdown has introduced a level of uncertainty to that pay for the Guard.
Last Friday, Governor Morrisey described the importance of continued payment to National Guard personnel in an interview with WEPM Radio.
“We’re hopeful that is the case and that we get as many people as possible covered because these are our armed forces after all,” Morrisey told WEPM’s Marsha Kavalek last week.
“Our Guard is doing yeoman’s work in-state and also the folks that we have in Washington, D.C., so I want to make sure these guys continue to get paid.”