A panel of U.S. appeals judges entered an order allowing National Guard members from states including West Virginia to remain in Washington, D.C., while the full case is under review.
Today’s order by three judges on the U.S. Appeals Court for the District of Columbia does not represent a final outcome in the case, but it does mean the appeals judges agree the Guard can remain on duty in the nation’s capital for now.
The appeals judges said it’s necessary to allow the Guard to remain until there’s a final outcome in the review because sending them home and bringing them back “is likely to result in a profound level of disruption to the lives of thousands of service members who have been deployed for four months already.”
The ruling, the judges said, “does not bind” the court moving forward. Yet the order suggests the appeals judges believe the position of the Trump administration to maintain the Guard presence is likely to prevail in the end:
“Because the District of Columbia is a federal district created by Congress, rather than a constitutionally sovereign entity like the fifty States, the Defendants appear on this early record likely to prevail on the merits of their argument that the President possesses a unique power within the District — the seat of the federal government — to mobilize the Guard.”
The appeals case is before federal judges Patricia Millett, who is an Obama appointee, and Gregory Katsas and Neomi Rao, who were appointed during Trump’s first term. Millett wrote today’s order and was joined by the others.
The order also allows West Virginia Attorney General J.B. McCuskey and counterparts across the country to participate in advisory capacities. West Virginia and other states had earlier filed a friend of the court brief siding with the Trump administration.
On August 11, President Donald Trump declared a “crime emergency” for the District of Columbia, and just a few days later Governor Morrisey deployed 300 to 400 members of the West Virginia National Guard for support.
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 continued.
West Virginia has an estimated 160 to 170 National Guard members who have remained in Washington, D.C., in a response to a call from the governor for volunteers. The West Virginia presence is to last until the end of the year, with reassessments after that.
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 West Virginia National Guard specified in an August statement that members were providing support in “areas of sustainment, logistics, administration, public affairs and Joint Staff augmentation.
“Security missions include static and roving presence patrols.” That meant standing or walking in high-traffic areas like public transit stations or national parks.
West Virginia National Guard members Sarah Beckstrom, 20, and Andrew Wolfe, 24, were shot Nov. 26 at the corner of 17th and I Streets NW. Beckstrom died on Thanksgiving Day, and Wolfe continues to recover from serious injuries.
A week before the shooting, Nov. 20, a federal judge ruled that deployment of the National Guard to Washington, D.C., has been unlawful.
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 the Trump administration lacks authority under D.C. law to support the deployment and also exceeded the bounds of the 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.”