Lawsuit against Trump's Washington National Guard deployment exposes country's deep partisan divide

The lawsuit, filed Sept. 4 by Washington Attorney General Brian Schwalb, challenges the Trump administration’s use of the National Guard in the heavily Democratic city as part of an emergency order issued by Trump to stem what the president called “out of control” crime. Although the order has lapsed, hundreds of troops are still in the city, which is seeking a preliminary injunction to stop the deployment.

With legal action launched against deployments to Portland, Oregon, and Chicago, the case will be closely watched, even though Washington's status as a federal district makes it an outlier. Oral arguments are set to begin Oct. 24.

States' support is split along party lines

Twenty-three states have aligned with the Trump administration’s stance that the president has the authority to bring in the National Guard, while 22 states back Washington's position. The 23 states supporting the administration have Republican attorneys general while the other 22 have Democrats.

For the states joining in the lawsuit — especially those facing their own interventions -- supporting Washington was a way to show solidarity against what they said was presidential overreach.

“It is un-American to use the military in any of our cities — absent truly extraordinary circumstances — and a threat against one city is a threat to us all,” said Oregon Attorney General Dan Rayfield, a Democrat, who supports Washington.

The states supporting Washington said in their filing that the deployment of National Guard units without the city's consent is unlawful, unconstitutional and undemocratic.

It "sets a chilling precedent that threatens the constitutional rights of Americans everywhere,” they said. “By unlawfully deploying National Guard troops, and by threatening to deploy the Guard to every State at his whim, the President has attacked State sovereignty, harmed local jurisdictions, and made us less safe.”

Those siding with the administration say Trump is in the right with his National Guard deployment in the District of Columbia.

"The District belongs to ‘the People’ as a whole, and its safety is critical to our constitutional republic," the 23 states said in a Sept. 16 filing, adding that they "have a profound interest in this case to ensure that President Trump can continue to protect our Nation’s capital.”

The reasoning, they say, is for safety not just for residents but for members of Congress and their staffers, as well as administration officials and foreign embassy workers. The filing notes all the groups have been crime victims in Washington in recent years. The states also argue that the Constitution and Congress give presidents enormous authority to protect the district.

“It is concerning to have states so divided and polarized,” said Emory University School of Law professor Mark Nevitt, who noted that it was just Republican-led states that have sent guard troops to Washington. The case filings are “a further representation of that divide.”

Hundreds of troops are still deployed in Washington

The Washington lawsuit emerged from the presidential order in August that led to roughly 2,000 troops from the District of Columbia National Guard and eight states patrolling public areas, including train stations, subway stations, the National Mall and other high pedestrian traffic areas. Some have been armed, unnerving residents, although no incidents have been reported.

Presidents have authority to call up the National Guard under a variety of circumstances, including to repel a rebellion or invasion, but the legal extent of that is debatable.

In the Washington case, states will be looking at what the court says about the president’s authority to deploy the guard, the legality of deploying out-of-state guard units against the wishes of local officials and whether police powers are deemed to have been encroached upon by the federal intervention. Those arguments could be relevant for any future court cases against the deployments.

States on the winning side of the Washington case will likely feel vindicated and may seek to point to it as precedent. But the district's unique status means the legal arguments may be different for states.

Washington, as a federal district, is distinct from the states

The president has authorities in Washington that he does not have elsewhere. In states, governors control their own National Guards. In Washington, a federal district, the president is already in charge of the National Guard and arguably can legally deploy troops without congressional approval. To deploy the National Guard to a state usually requires the approval of that state's governor, along with legal reasoning for doing so.

Washington will also be looking to rulings in other cases that may be pertinent for its own. A judge ruled last month that the Trump administration broke the law by sending guard troops to Los Angeles in early June. The 150-year-old Posse Comitatus Act limits the U.S. military’s role in enforcing domestic laws, unless “expressly” authorized by the Constitution or Congress.

William Banks, professor emeritus of law at Syracuse University, said he believes the president is within his authority to call up the National Guard in Washington and then to federalize other guard units in the city even if Americans “don’t like the involvement of the military in civilian activities” because of statute. It is a federal district, not a state, he said.

Experts differ over how they think the case will play out. The court's rulings could range from saying the president is within his authority in calling up the D.C. National Guard as well as units from other states to calling the deployments an unlawful expansion of presidential authority.

Margaret Hu, a professor at the William and Mary School of Law, said that the court first has to decide if Trump used the law correctly, and, even then, it must decide whether this was an appropriate use of the National Guard.

“Part of what D.C. is arguing when they say this is an illegal deployment is that it violates the spirit of the law the Constitution requires” to give states and jurisdictions autonomy to police their citizens, Hu said. “There are complex questions the court has to answer.”