Muriel Bowser, the elected mayor of Washington, D.C., was asked Wednesday what she thought of military-style tactics that the D.C. National Guard had taken earlier in the week, when a military helicopter
hovered at treetop height to disperse a crowd with the downdraft of its rotors.
The maneuver, the mayor said, was “wholly inappropriate.”
But there’s nothing the mayor could do about it, because, even though she is the chief executive of the District, the National Guard does not report to her. In every state, the Guard reports to the state’s governor. But the District is the only place where it reports to the president of the United States.
It was yet another reminder that the District, as a strange creature of the federal government, does not enjoy the same tools of self-governance that states do.
Advocates for D.C. rights and statehood frequently rail against the fact that the District has no vote in Congress, that Congress can nullify local laws and that D.C. residents have no say in how their federal tax money is spent.
But this week, District residents (myself included) are being reminded that the lack of statehood means we are more susceptible to being occupied by out-of-state forces than anywhere else in the continental United States. What’s more, that is a feature – not a bug – of the U.S. Constitution.
More than 2,000 National Guard
troops are already deployed in D.C., and that number could double in the coming days. They come from places including Indiana, Maryland, New Jersey, Ohio, South Carolina, Tennessee and Utah. (The Democratic governors of Delaware, New York and Virginia, though, refused to dispatch troops
at the president’s request. Pennsylvania’s Democratic governor said
he was still evaluating the request from President Donald Trump.)
Meanwhile, nearly a dozen
federal agencies have also deployed law enforcement personnel to Washington. The federal government has also vastly expanded its footprint in the heart of the District. President Donald Trump drew criticism on Monday for clearing the park next to the White House of protesters with tear gas and explosives so he could visit St. John’s Episcopal Church across the street. But now that church is inside the federal cordon, off-limits (see photo, above) to even the mayor, the church’s bishop and other religious leaders who planned to hold a demonstration there Wednesday afternoon.
Nearly half of the states have deployed the National Guard to deal with protests that flared up in the last week, following George Floyd’s death in police custody in Minneapolis.
On Wednesday, Defense Secretary Mark Esper said
active duty military should not be used to respond to the protests that have flared up across the country. The secretary said he opposed using a part of federal law commonly referred to as the Insurrection Act that allows the president to send military units into states under special circumstances. That law, Esper said, applied only to the “most urgent and dire of situations,” and, he added, “we are not in one of those situations now.” Esper’s remarks reportedly angered Trump, who has the final say on whether he invokes the Insurrection Act.
But the president doesn’t need the Insurrection Act
, or any other law, to deploy troops to the District.
Washington’s mayor, explains Lindsay Cohn, a professor at the U.S. Naval War College, “does not have the power to say no.”
“The president can send federal troops into states without the governor’s consent, but there is a statute that [spells out] the conditions under which he can do this,” she adds. “The Supreme Court has ruled that the president’s discretion is pretty broad, so there’s very little remedy if a state doesn’t want him to do it. But at the very least there is there is the opportunity for governors, for Congress, and for the media to request an explanation. [They can ask] ‘Can you give us a justification? Can you explain it?’ It won’t help them legally…but politically speaking, that gives people an opportunity to engage with whether this is appropriate, whether it’s right.”
“D.C. doesn’t have that sort of added layer of protection,” Cohn says. “In D.C., [Trump] can just say, ‘No, I feel like it.”
Cohn cautions, though, that just because the District is now seeing a bigger military presence than other cities doesn’t mean that the tactics used by the troops is any more or less harsh than the tactics used by police and other law enforcement personnel in other cities. Police in other cities have engaged in dangerous actions, such as shooting people in the face with pepper spray or driving their vehicles through crowds.
Active military have some advantages over local when working on crowd control, particularly their discipline and experience abroad with de-escalation tactics. But they usually receive very little training in how to deal with civil disturbances, while National Guard troops get more training in that area, she adds.
In the rare instances when active duty personnel have been called into states to deal with civil unrest, they tend to take on behind-the-scenes duties. When federal troops were dispatched to Los Angeles during the Rodney King riots, for example, most of them worked on duties like transportation, logistics and communication. Relatively few were involved with patrolling neighborhoods, Cohn points out.
The fact that the District has so few powers to respond to civil unrest, though, is hardly an accident.
In fact, the reason that the District is not part of any other state goes back to a riot in Philadelphia at the end of the Revolutionary War that forced Congress to flee to Annapolis. When soldiers serving in George Washington’s army nearly mutinied in 1783, Pennsylvania authorities refused to protect Congress. So when the Founding Fathers drafted the Constitution in Philadelphia some six years later, they decided the safety of the federal government shouldn’t be left to any state.
James Madison, the chief architect of the Constitution, defended the arrangement in the Federalist Papers (No. 43)
. He said the federal government needed complete authority in the seat of government.
“The indispensable necessity of complete authority at the seat of government, carries its own evidence with it,” he said. “It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.”
The concern, in other words, was protecting the federal government from the citizens of the capital city. But the Framers left little recourse for the citizens of the capital city when confronted with heavy-handed tactics of the federal government.