A federal judge ruled that deployment of the National Guard from several states, including West Virginia, to Washington, D.C., has been unlawful.
U.S. District Judge Jia Cobb, a Biden appointee to the federal court covering the District of Columbia, granted a preliminary injunction on Thursday afternoon. However, Cobb issued a stay of her own ruling until Dec. 11 to allow for appeal and “to prevent potential disruption to the functioning of the District and the National Guard.”
The challenge to the Guard deployment was brought by the District of Columbia, which argued that the president’s deployment infringed on the district’s sovereignty and self-governance, which was granted by Congress through the Home Rule Act of 1973.
Cobb, in a 61-page opinion, concluded that the Trump administration exceeded its authority to deploy the National Guard to Washington, D.C. without the request of local officials. The judge concluded that although the Constitution grants authority over the district to Congress, that was delegated through home rule.
“Here, the state governors whose units are currently operating in the District lack authority to order these missions because the District has not properly sought their aid,” the judge wrote, citing local code and federal law.
On August 11, President Donald Trump declared a “crime emergency” for the District of Columbia, and five days later Gov. Patrick Morrisey deployed 300 to 400 members of the West Virginia National Guard for support.
About 2,000 members of the National Guard, overall, have been deployed to Washington, D.C., to patrol on the National Mall, in Metro public transportation stations and across D.C. neighborhoods.
The president’s emergency declaration, which placed the Metropolitan Police Department under federal direction, expired after 30 days, Sept. 10, but the National Guard presence has continued.
This week, the West Virginia National Guard announced participation in patrols in Washington, D.C., would continue until the end of the year. However, West Virginia’s participation was already being scaled back, with about 160 volunteers remaining in the deployment. The remainder returned home at the beginning of this week.
The governor’s August 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.
This federal law permits a member of the National Guard to be ordered to perform training or other duty that may include support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.
Members of the West Virginia National Guard who have been deployed to Washington, D.C., have been operating under Joint Task Force-DC, which says the mission will continue “until law and order is restored.”
Earlier this month, Kanawha Circuit Judge Richard Lindsay dismissed a state-level challenge to the deployment by concluding the president was within his authority to call the Guard to Washington, D.C., and the governor has been within his authority to deploy the West Virginia National Guard there.
Lindsay’s ruling weighed the unique federal oversight of the District of Columbia as a significant factor.
“I understand that the plaintiff wants to put aside the fact that this happened in D.C., or the fact that the president has the authority that he has when invoking a local statute in D.C. But I think those are important factors,” Lindsay said in the bench ruling.
“I believe we’re not talking about another state or sovereign like Pennsylvania or Ohio. We’re talking about the District of Columbia, which is under the federal jurisdiction of our Congress and government.”
The judge in the federal case, which was going on about the same time, concluded differently.
West Virginia Attorney General J.B. McCuskey’s office earlier participated in a written statement of support for the deployment of the National Guard to Washington, D.C., as part of the federal case.
“The president has the authority, and the duty, to protect our nation’s capital. The lawlessness in Washington, D.C., the result of years of soft-on-crime policies, was putting our nation at risk and finally, we have a President willing to step up to secure it,” McCuskey said in a statement distributed by his office.
U.S. District Judge Cobb concluded that the Trump administration lacks authority under D.C. law to support the deployment and also exceeded the bounds of their authority under federal statute. The judge found that the deployment usurps the district’s rights to self government.
Under the Home Rule Act, Congress delegated its exclusive authority over the District to the District government and its local elected representatives, the judge wrote.
“The District may not be a sovereign like a state is, but it can nevertheless exercise delegated sovereign powers and is therefore injured by being unlawfully deprived of those powers,” Cobb wrote.
The judge continued, “When improperly deployed in the District, out-of-state National Guard units violate the District’s right to be free from state influence by forcing the D.C. government to share power with state governors commanding Guard units.”