AILSA CHANG, HOST:
Here's the thing - President Trump is allowed to send in the National Guard and federal law enforcement and, in a sense, borrow the police force of Washington, D.C., because the nation's capital is a special legal case. While the District of Columbia mostly does govern itself, like any other big city, federal law allows the president and Congress to override local control in certain ways, regardless of whether any D.C. residents actually believe that there is a crime emergency in D.C., as President Trump says. It does get harder to legally justify his actions if he wants to target other major cities, like Chicago.
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PRESIDENT DONALD TRUMP: Chicago is a mess. You have an incompetent mayor, grossly incompetent. And we'll straighten that one out probably next. That'll be our next one after this.
CHANG: But what does federal law say about taking this federal crackdown on crime on the road beyond the District of Columbia? Well, for that, we have called again on Steve Vladeck, Georgetown University law professor. Welcome back.
STEVE VLADECK: Thanks, Ailsa. Great to be with you.
CHANG: So let's just talk about the military component of all of this right now. It's been a little over - what? - two weeks since President Trump deployed the National Guard in Washington, D.C. What is the legal authority for that?
VLADECK: I mean, so there really are two different authorities he's relying upon. With regard to the D.C. National Guard - so the folks who are here in D.C. all year - the president is always the commander in chief of the D.C. National Guard. He can use them at any time. He doesn't need anyone's permission. But he's also relied upon out-of-state National Guard troops that have been sent by a bunch of red state governors under a really obscure and not well-tested authority that was enacted by Congress in 2006. It's really that authority that's a much bigger deal if President Trump really does try to take this show on the road.
CHANG: And Trump has said that his decision to deploy any National Guard troops is to fight crime, even though D.C. Police data shows a double-digit drop in violent crime rates the last few years. What is the National Guard allowed to do when it comes to local crime?
VLADECK: This is where things get really, really sticky because of the uniqueness of D.C. In D.C., the National Guard has much broader power than it has almost anywhere else in the country because in D.C. it is always federal. It's always acting under the command and control of President Trump.
CHANG: Right.
VLADECK: In other states - in California, in Illinois, in New York - the only way President Trump could directly command the National Guard would be to formally federalize it. And that depends upon President Trump finding various things to be true on the ground that also don't appear to be true on the ground, and that would expose whatever he would try to, I think, a significant risk of litigation.
CHANG: OK, what happens to the president's authority to federalize the National Guard in parts of the country outside of D.C. when there is local pushback? Like, here in Los Angeles where I am, all the pushback from the mayor here and the governor did not stop Trump from federalizing the California National Guard and sending active-duty Marines into LA earlier this year. And now Trump is saying more cities like Baltimore, like Chicago are next, but mayors of both of those cities and the governors there are saying, no. So what allows the president to disregard the wishes of those officials?
VLADECK: Federal law since at least 1807 has allowed the president in some circumstances to send troops into states whether or not the governor consents. And, you know, we saw that put to good use a lot during the Civil Rights Movement, for example, when President Eisenhower sent troops into Little Rock, Arkansas to, you know, desegregate Central High School. The tricky part here is that what President Trump did earlier this year in California was based on his assertion that the federal forces were necessary to defend federal property and federal personnel - to whit, ICE officers who are going on raids in Los Angeles. He needs that kind of a target. He needs that kind of a - sort of predicate or some broader argument that local civilian authorities have been unable to enforce the laws on the books before the law would allow him to federalize, say, the Illinois National Guard and send it into Chicago.
CHANG: What specific legal arguments could city and state leaders make to challenge the Trump administration in court?
VLADECK: So, you know, again, I think there are two different authorities he could use, and the arguments will depend upon which one it is. So if President Trump tries to federalize, let's say, again, the Illinois National Guard, just as one example...
CHANG: Yeah.
VLADECK: ...One of the arguments will be that the factual predicates for federalization are not present, that, you know, he didn't have the authority because there was just no need for it. Another argument, and one we've seen in the California case already, is that even if President Trump has the authority to federalize the Illinois National Guard, he doesn't have the authority to send them into the streets to do ordinary law enforcement, that they can only do limited missions like protecting federal property or federal officers. If it's the other authority, if it is the, you know, weird 2006 statute that allows state governors to send their National Guards at their own volition into other states...
CHANG: Yeah.
VLADECK: ...To support a, quote, "federal mission," unquote, then I think the arguments are going to be that you have to have the consent of the receiving state governor, or else you have a massive violation of the equality of states' rights under the Constitution.
CHANG: Well, just historically speaking, for context here, explain why the U.S. has always tried to draw some clear lines between the military and domestic law enforcement.
VLADECK: Yeah, I mean, if we go all the way back to the founding of this country, you know, one of the charges against King George III that was leveled in the Declaration of Independence was that he was using, you know, the military to effectively supplant civilian rule in the colonies. This is why, for example, the Constitution prohibits the quartering of troops in our homes in the Third Amendment.
Congress, really, since 1792, has said, we recognize there are going to be some circumstances, some emergencies in which the president's really going to need to be able to use troops on the home front, maybe to repel invaders or to suppress an insurrection. But, you know, those authorities have historically been used sparingly. We haven't even seen those authorities used since 1992, when President Bush, you know, used the statute called the Insurrection Act to send troops into Los Angeles during the Rodney King riots.
For President Trump to cross that line in a context in which there is such significant contestation of the factual basis and in which it really does seem to be about partisan politics and not public safety, you know, is not just challenging those legal precedents. It really is challenging the very, very strong norm we have in this country that we don't have the military doing law enforcement.
CHANG: Well, short of the courts, is there anything stopping the president of the United States from declaring an ongoing emergency and leaving troops on the streets of D.C. indefinitely?
VLADECK: So not on the statutes as they are currently written. Now, you know, someone has to pay for all of this. So presumably, there is going to be a budgetary constraint at some point along the way. But, you know, for better or for worse - and I would argue for worse - Congress has given the president an awful lot of power over the District of Columbia, you know, reflecting a series of historical and structural quirks about the nation's capital.
I think the most important point for folks to take away from that is that it doesn't mean that the same things will be legal if and when President Trump tries them in other cities. You know, just because we're getting conditioned to and desensitized to visuals of National Guard troops in Union Station and on the National Mall doesn't mean we should feel the same if you see that in, you know, Times Square or Grant Park.
CHANG: Steve Vladeck of Georgetown University Law Center, thank you very much.
VLADECK: Thank you. Transcript provided by NPR, Copyright NPR.
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