Trump and Barr used a loophole to deploy the National Guard to U.S. cities. It's time to close it.

A path has been laid for future presidents to make the National Guard their own personal security force. Unless we act, we are inviting future abuses.
Image: Black Lives Matter Protests Held In Cities Nationwide
National Guard members deploy near the White House ahead of peaceful protests against police brutality in Washington on June 6.Drew Angerer / Getty Images file
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By Sen. Tom Udall and Rep. Jim McGovern

President Donald Trump recently took the drastic step of sending thousands of National Guard troops to Washington, D.C. They were not sent to repel a foreign attack on the nation's capital but to mobilize against American citizens peacefully protesting the senseless killing of George Floyd. The Trump administration then deployed scores of unidentified federal law enforcement officers, many of them from the Department of Homeland Security, to Portland, Oregon, resulting in increased mayhem and injuries to nonviolent protesters.

This move resembles what we might expect to see from authoritarians abroad rather than a president of the United States.

The president is treating our military and federal law enforcement like his own personal security forces. And he's doing this not to protect public safety but to stage photo-ops and prop up his floundering campaign. This move resembles what we might expect to see from authoritarians abroad rather than a president of the United States.

Using the military to police Americans flies in the face of U.S. traditions and values — and violates a long-standing principle known as "posse comitatus." More than a century ago, Congress passed the Posse Comitatus Act to ban the use of federal troops for law enforcement purposes not expressly authorized by law. But Trump and Attorney General William Barr have found a way around the act. Congress must act quickly to close this loophole before more communities start looking like war zones.

The Posse Comitatus Act bans the use of National Guard units for law enforcement only when they are federalized, meaning they are brought under the command and control of the president. When National Guard units are operating in so-called hybrid status — serving federal missions funded with federal dollars but under state governors' command and control — they are not subject to the act and therefore are able to perform law enforcement functions, like searches and arrests.

Congress has limited the activities the National Guard can perform in hybrid status, but it does allow it to perform training exercises in this formulation. Barr twisted this provision to enable the rogue deployment in Washington from 11 states.

According to Barr's interpretation of the law, it seems that the president can shoehorn any duty into the category of "training." And if a governor objects to a federal mission in his or her state, well, that's no obstacle under Barr's theory: The president can simply find willing governors in other states and send their National Guard units across state borders.

That's not what Congress intended, and it's not what American citizens expect. That's why we are trying to close this loophole and prevent Trump and any future president from doing another end run around the Posse Comitatus Act. Our proposal would make it clear that National Guard units cannot act as a federal police force while engaged in training.

We can close this loophole and still leave ample flexibility to address any true emergency. Under our approach, the National Guard could still supplement police forces as part of federally funded disaster response efforts. And governors would retain full authority to deploy their National Guard units for any purpose allowed by state law.

Our proposal would also leave in place the Insurrection Act — a statutory exception to the Posse Comitatus Act — which the president can invoke to deploy federal troops to quell violent unrest or to enforce the law in cases where the states can't or won't. We saw this play out most famously when President Dwight Eisenhower deployed federal troops to enforce a federal court order on school desegregation in Little Rock, Arkansas. The Insurrection Act could also be abused, of course, but it doesn't create the same limitless loophole as Barr's interpretation of National Guard authorities.

Some may believe that with an election just around the corner, Congress can wait out the clock on this lawless president and just hope for new leadership that actually upholds the rule of law and our long-standing democratic values. But norms are like glass — once broken, they are incredibly hard to put back together.

A path has been laid for future presidents to again make the National Guard their own personal security force. Unless we act, we are inviting future abuses of power.

Our National Guard forces perform honorably at home and around the world, as we have all witnessed, most recently in the invaluable aid they have provided states and localities during the COVID-19 pandemic. They should never again be abused for political purposes and told to train their weapons on fellow Americans peacefully exercising their constitutional rights.