Filed: Apr. 04, 1989
Latest Update: Mar. 03, 2020
Summary: Use of the National Guard to Support Drug, Interdiction Efforts in the District of Columbia, Use of the District of Columbia National Guard, in its militia status, to support local drug, law enforcement efforts is not prohibited by the Posse Comitatus Act. D.C. Code § 39-109.
Use of the National Guard to Support Drug
Interdiction Efforts in the District of Columbia
Use of the District of Columbia National Guard, in its militia status, to support local drug
law enforcement efforts is not prohibited by the Posse Comitatus Act.
The activity may receive funding from the Secretary of Defense under section 1105 of the
Defense Authorization Act if the President, as Commander-in-Chief of the District of
Columbia National Guard, requests such financial assistance.
Executive Order 11485 assigns the Attorney General the responsibility of establishing, in
consultation with the Secretary of Defense, the law enforcement policies to be observed
by the National Guard in these circumstances, but it does not assign the Attorney
General any responsibility with respect to the policy decision of whether the National
Guard should be assigned to the described use or any supervision and control responsi
bility for the implementation of such a decision
April 4, 1989
M emorandum O pinion for the A cting A ssociate A ttorney G eneral
This memorandum responds to the request of your Office1for our opin
ion with respect to the use of the District of Columbia National Guard
(“National Guard”), in its militia status (i.e., not in federal service), to
support the drug law enforcement efforts of the District of Columbia
Metropolitan Police.2 You have raised the following specific questions:
(1) Is this use of the National Guard prohibited under the Posse
Comitatus Act? (2) May the Secretary of Defense provide funds to sup
port the use, pursuant to section 1105 of the National Defense
Authorization Act, Fiscal Year 1989 (“Defense Authorization Act”)? (3)
1 Memorandum to Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, from
Margaret C Love, Deputy Associate Attorney Genera], Re Use o f the National Guai'd to Support Di'ug
Interdiction Efforts in the D istrict o f Columbia (Mar 21, 1989), as supplemented by Memorandum to
Douglas W Kmiec, Assistant Attorney General, Office of Legal Counsel, from Margaret C. Love, Deputy
Associate Attorney General, Re* Use o f the National Guard to Support Drug Intei'diction Efforts in the
D istrict o f Columbia (Mar. 23, 1989)
2 We have been informed by the Department of Defense that “[tjhe D C. National Guard, like the State
and Terntonal National Guards, may normally be called into federal service for civil law enforcement
purposes only pursuant to 10 U S C. §§ 3500, 8500, 331, 332 or 333. The D.C. National Guard plan, cur
rently under review by the Department of Justice, does not propose to call the D C. National Guard into
federal service ” Letter to John O McGinnis, Deputy Assistant Attorney General, Office of Legal Counsel,
from Robert L Gilliat, Assistant General Counsel (Personnel & Health Policy), Department of Defense
(Mar 31, 1989).
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What are the Attorney General’s responsibilities in these circumstances
under section 2 of Executive Order 11485?
As discussed below, we have concluded that the described use of the
District of Columbia National Guard is not prohibited by the Posse
Comitatus Act because that Act does not apply to a National Guard act
ing as a militia and because, even if that Act did so apply, the use has been
authorized by an Act of Congress. Congress has authorized the use in sec
tions 39-104 and 39-602 of the D.C. Code. The activity may receive fund
ing from the Secretary of Defense under section 1105 of the Defense
Authorization Act if the President, as Commander-in-Chief of the District
of Columbia National Guard, requests such financial assistance.3 Finally,
Executive Order 11485 assigns the Attorney General the responsibility of
establishing, in consultation with the Secretary of Defense, the law
enforcement policies to be observed by the National Guard in these cir
cumstances, but it does not assign the Attorney General any responsibil
ity with respect to the policy decision of whether the National Guard
should be assigned to the described use or any supervision and control
responsibility for the implementation of such a decision.
Discussion
1. Posse Comitatus Act
Application of the Posse Comitatus Act to a National Guard depends on
whether that National Guard is acting in its status as militia for the partic
ular State or territory or the District of Columbia, or rather has been called
into federal service by the President. Under the Posse Comitatus Act, the
use of the Army or the Air Force to execute the laws is prohibited “except
in cases and under circumstances expressly authorized by the Constitution
or Act of Congress.” 18 U.S.C. § 1385. Since by its terms the Posse
Comitatus Act applies only to the use of the Army or the Air Force, it
applies to a National Guard only when it has been put into federal service
as part of the Army or Air Force.4 Since the described use for the District
of Columbia National Guard would be for it in its militia rather than feder
al service capacity, it is not prohibited by the Posse Comitatus Act.
3 For purposes of this provision authorizing financial assistance to National Guards in their militia
capacity upon the request of State Governors, the President stands in the position of a Governor
4This Department has long recognized that the Posse Comitatus Act does not apply to a National Guard
in its militia status See, eg., Letter for Charles J Zwick, Director, Bureau of the Budget, from Warren
Christopher, Deputy Attorney General at 2 (June 4,1968) (stating, in the context of supporting use of the
District of Columbia National Guard in rrulitia status rather than federal status to control civil disturb
ances, that “the Posse Comitatus Act ... prohibits placing federalized Guardsmen at the disposal of
civilian law-enforcement officers to assist the latter in executing the laws”) (emphasis added). That the
Posse Comitatus Act is limited in this way is also recognized in Congress See, e.g., National Defense
Authorization Act Conference Report, H.R. Conf. Rep. No. 753,100th Cong., 2d Sess 453 (1988) (“When
not in federal service, the National Guard is not subject to the Posse Comitatus Act.”).
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Moreover, even if the Posse Comitatus Act applied to the described
use, it would not prohibit the use because it is authorized by an Act of
Congress: Act of March 1, 1889, ch. 328, 25 Stat. 772, which enacted the
D.C. Code. Section 39-602 of the D.C. Code authorizes the Commanding
General of the National Guard to “order out any portion of the National
Guard for such drills, inspections, parades, escort, or other duties, as he
may deem proper.” The authorization to order out the Guard for “other
duties, as he may deem proper” has long been viewed as broad enough to
include law enforcement activities.5 In 1963, for example, this Office
interpreted section 39-602 to authorize
the President to request or urge the commanding general to
use the National Guard in support of activities of the District
of Columbia police whenever he feels that the welfare, safe
ty, or interest of the public would be served thereby.
Schlei Opinion, at 3. This natural reading of section 39-602 is especially
appropriate in light of section 39-104 of the Code, which makes it clear
that the National Guard, acting as militia, may be “called ... to aid the civil
authorities in the execution of the laws.” Relying on section 39-602, the
National Guard has been used in its militia capacity to support law
enforcement activities of the District of Columbia Metropolitan Police,
both in the course of presidential inaugurations and in the case of large
demonstrations. See, e.g., Letter for Michael P.W. Stone, Under Secretary
of the Army, from Harold G. Christensen, Deputy Attorney General (Jan.
13, 1989) (1989 inauguration), and letters cited therein (prior inaugura
tions); Memorandum for the Deputy Attorney General, from Mary C.
Lawton, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Law Relating to Civil Disturbances at 5-6 (Jan. 6, 1975) (“Lawton
Opinion”) (demonstrations).6
6 See, eg , Memorandum for the Assistant Attorney General, Civil Division, from Norbert A. Schlei,
Assistant Attorney General, Office of Legal Counsel, Re- Authonty to use the National Guard o f the
Distinct of Columbia to supplement civilian police foixe activities during a massive demonstration
at 2 (July 30,1963) (“Schlei Opinion”) (section 39-602’s “ language
or parade in the D is tiict o f Columbia
is broad enough to be construed as authonzing the commanding general to use the National Guard to
support activities of the civilian police force during any massive demonstration or parade in the
District”), Memorandum for the Assistant Attorney General, Civil Division, from Norbert A. Schlei,
Assistant Attorney General, Office of Legal Counsel, Re- Memorandum concerning the amenability o f
members of the National Guard o f the District o f Columbia to courts-martial or othei' disciplinary
action fo r failure to participate in form ations ordered pursuant to Section 44 o f the A ct o f March 1,
1889 at 2 (Aug. 9, 1963) (“[T]he term ‘other duties’ can be reasonably interpreted as including activities
in aid of civil authorities ”)
6 Although there is adequate statutory authority in this case, and we therefore need not reach the ques
tion, since the President is Commander-in-Chief of the District of Columbia National Guard in its militia
status (D.C. Code § 39-109), and since the D.C. Code is federal law, this use of the National Guard might
also be supported on the basis of the President’s inherent constitutional authonty to use any forces at his
command to carry out the laws. See In Re Neagle, 135 U.S 1 (1890).
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2. Funding Authority under the Defense Authorization Act
Section 1105(a)(1) of the Defense Authorization Act authorizes
the Secretary of Defense to provide to the Governor of a
State who submits a plan to the Secretary under paragraph
(2) sufficient funds for the pay, allowances, clothing, sub
sistence, gratuities, travel, and related expenses of person
nel of the National Guard of such State used — (A) for the
purpose of drug interdiction and enforcement operations;
and (B) for the operation and maintenance of the equip
ment and facilities of the National Guard of such State used
for such purposes.
Pub. L. No. 100-456, 102 Stat. 2047 (1988). Since the described use of the
District of Columbia National Guard is for drug law enforcement purpos
es, the Defense Authorization Act would thus clearly authorize federal
funding for the use if that National Guard is eligible for the funding to the
same extent as Eire State National Guards. For the reasons set forth
below, we believe that it is.
“The President of the United States shall be the Commander-in-Chief of
the militia of the District of Columbia.” D.C. Code § 39-109. This Office
has consistently taken the position that “the President... stands in a rela
tion to the D.C. National Guard that is similar to the relation obtaining
between the Governors of the several States and their respective State
National Guard units.”7 Thus, we believe it is reasonable to interpret sec
tion 1105 of the Defense Authorization Act to authorize the President to
request financial support for the District of Columbia National Guard to
the same extent as Governors may request such support for their State
National Guards.
Not only may section 1105 be interpreted to equate the President with
a Governor, it may also be interpreted to equate the District of Columbia
with a State for purposes of this statute. “This Office has consistently
taken the position that the District is a State within the meaning of chap
ter 15 of Title 10 [which authorizes federalizing the National Guards or
using the armed forces to aid State governments or enforce federal
authority], even though not so defined ....” Lawton Opinion, at 5. The
rationale for thus treating the District of Columbia as a State in the
National Guard context was explained with reference to the President
7 Memorandum for Warren Christopher, Deputy Attorney General, from Martin F. Richman, First
Assistant, Office of Legal Counsel, Re. Use of D C. National Guardsmen to Aid in Policing Anti-War
Demonstrations in the D istrict of Columbia and at the Pentagon at 2 (Oct 13, 1967) (“Richman
Opinion”). See also Schlei Opinion, at 3 (“[T]he President performs the same function with respect to the
District of Columbia National Guard as the Governors of the several States serve with respect to their
respective State organizations.”).
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calling the National Guard for the District into federal service under 10
U.S.C. § 332. Relying on Geofroy v. Riggs, 133 U.S. 258 (1890), the Office
reasoned as follows:
The District of Columbia is not considered as being a
“State” in the Constitutional sense.8 However, the District
has been held to be a State for purposes of a treaty which
accorded to certain aliens the right to hold property in all
“States” of the Union. The Supreme Court adopted this con
struction [in Geofroy] because of the unreasonable result
that would have followed if a distinction had been drawn
between the District and the States for purposes of the
treaty. Similarly, if an Act of Congress generally applies in
every “State” without reference to the Constitutional limita
tions of this term, and if a reasonable construction requires
that the District be considered as on the same footing with
all the States for purposes of the Act, the Court’s opinion in
the Geofroy case indicates that the District would be held to
be a “State” for those purposes.
The evident purpose of 10 U.S.C. 332 is to enable the
President to use Federal troops, if necessary, “to enforce the
laws of the United States” in any part of the country where
their execution is obstructed. By any reasonable interpreta
tion of this provision, its protective reach must be regarded
as extending to the District of Columbia, where all the laws
are laws of the United States. It is therefore concluded that
the reference in section 332 to disturbances “in any State”
would include disturbances in the District of Columbia.
Richman Opinion, at 3-5 (citations and footnotes omitted). This reason
ing supporting the conclusion that the District of Columbia should be
viewed as a “State” for purposes of the statute authorizing the domestic
use of the armed forces also supports the conclusion that the District be
viewed as a State for purposes of section 1105 of the Defense
Authorization Act.
In the terms of the Richman Opinion, “a reasonable construction [of
section 1105] requires that the District be considered as on the same foot
ing with all the States for purposes of the [section].” Id. at 4.9 It is rea
8 Nor, absent constitutional amendment, could it be. Letter for James C Miller, III, Director, Office of
Management and Budget, from John R Bolton, Assistant Attorney General, Office of Legislative Affairs,
at 2-4 (Apr. 8, 1987).
9 Even in the absence of the Richman Opinion, we would be inclined to conclude that the District of
Columbia should be treated as a State for purposes of section 1105 The rule of construction in Geofroy
Continued
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sonable to read section 1105 to be authorizing assistance to all National
Guards in their militia status, including the National Guard for the
District of Columbia. As is evident from its title, the general purpose of
the section was an “enhanced drug interdiction and enforcement role for
the National Guard.” 102 Stat. 2047. Nothing in the section or its legisla
tive history indicates that the National Guard of the District of Columbia
was intended to be excluded. Indeed, the conferees who agreed to this
section stated their “intent... that priority be given to those plans which
(a) involve areas of the greatest need in terms of drug interdiction and (b)
are most likely to be effective.” H.R. Conf. Rep. No. 753, 100th Cong., 2d
Sess. 453 (1988). The decision to use the National Guard in the District of
Columbia would certainly appear to represent a determination that the
District is such a high priority area.
Accordingly, we conclude that, as Commander-in-Chief of the National
Guard for the District of Columbia in its militia status, the President
stands in the position of a Governor of a State and, pursuant to section
1105 of the Defense Authorization Act, may request funding by the
Secretary of Defense by submitting a plan for the use of the National
Guard to assist the drug law enforcement activities of the District of
Columbia Metropolitan Police.10
3. Attorney General Responsibility under Executive Order 11485
Section 2 of Executive Order 11485 (“Supervision and Control of the
National Guard of the District of Columbia”), October 1, 1969, 3 C.F.R.
814, (1966-1970), provides that
The Attorney General is responsible for: (1) advising the
President with respect to the alternatives available pursuant
to law for the use of the National Guard to aid the civil
authorities of the District of Columbia; and (2) for estab
lishing after consultation with the Secretary of Defense law
enforcement policies to be observed by the military forces
in the event the National Guard is used in its militia status to
aid civil authorities of the District of Columbia.
While it is evident that clause (1) of section 2 does no more than reiter
ate in this specific context the Attorney General’s established authority as
9 ( . continued)
is a venerable one and Congress may be presumed to have notice of it. Accordingly, in light of the fact
that there is no evident congressional intent to exclude the Distnct from the ambit of section 1105, we
believe Congress must have understood that the District would be included within that section
10We understand that the Mayor of the District of Columbia has submitted such a plan. However, since
under our interpretation of section 1105 it is the President who must request financial assistance and
submit a plan, the President’s plan may, but need not, be based on the plan submitted by the Mayor.
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legal advisor to the President, you have asked for our interpretation of
the authority being given the Attorney General under clause (2).
By its express terms the Executive Order provides that it is the
Attorney General who has the responsibility for establishing the law
enforcement policies that the National Guard must abide by when it is
used in its militia capacity to aid the civil authorities of the District of
Columbia. The Attorney General must consult with the Secretary of
Defense concerning what those policies should be, but it is clearly the
Attorney General who is to determine the policies. Thus, while the Order
does not assign any responsibility to the Attorney General with respect to
deciding the policy question of whether the National Guard is to be used
to assist the District’s civil authorities, once that decision has been made,
the Attorney General has the authority to establish the governing law
enforcement policies. Moreover, while we believe it is reasonable to infer
from the Order that the Attorney General has authority to monitor the use
of the National Guard in these circumstances in order to determine
whether the law enforcement policies are in fact being observed, section
1 of the Order makes it clear that the actual supervision and control of
the National Guard in these circumstances is the responsibility of the
Secretary of Defense.
Conclusion
The described use of the National Guard is not prohibited by the Posse
Comitatus Act because that Act does not apply to a National Guard act
ing as a militia and because, even if that Act did so apply, such a use has
been authorized by sections 39-104 and 39-602 of the D.C. Code. The
activity may receive funding from the Secretary of Defense under section
1105 of the Defense Authorization Act if the President, as Commander-in-
Chief of the National Guard, requests such financial assistance. Finally,
Executive Order 11485 assigns the Attorney General the responsibility of
establishing, in consultation with the Secretary of Defense, the law
enforcement policies to be observed by the National Guard in these cir
cumstances, but it does not assign the Attorney General any responsibil
ity with respect to the policy decision of whether the National Guard
should be assigned to the described use or any supervision and control
responsibility for the implementation of such a decision.
DOUGLAS W. KMIEC
Assistant Attorney General
Office of Legal Counsel
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