Appeals Court Allows National Guard to Remain in D.C., for Now

A three-judge panel voted unanimously to allow troops to stay in the capital for the duration of the appeal, citing the city’s unique legal status.

A federal appeals court in Washington ruled on Wednesday that national guardsmen stationed in the city since August by President Trump could remain while the court considered the legality of the deployment.

The decision prolonged Mr. Trump’s most expansive effort so far to use the military to police a city with Democratic leadership, after smaller deployments in several states were halted or wound down, partly as a result of orders by federal judges around the country.

It came as the Supreme Court is currently considering whether the president’s deployment of national guardsmen to Chicago over the objection of local and state leaders violated the law.

The decision also came three weeks after a targeted attack on National Guard troops in Washington on Nov. 26, which killed one person and seriously injured another, and which the president cited to justify scaling up the deployment. Mr. Trump announced after the shootings that he would surge an additional 500 troops, adding to the more than 2,000-member contingent stationed in the capital, despite a judge’s order that the deployment was most likely unlawful.

Voting unanimously to allow the Guard to remain, a three-judge panel wrote in a 30-page opinion that the Trump administration appeared likely to prevail in the case, largely because of Washington’s unique legal status.

“Because the District of Columbia is a federal district created by Congress, rather than a constitutionally sovereign entity like the 50 states,” the opinion said, “the defendants appear on this early record likely to prevail on the merits of their argument that the president possesses a unique power within the District — the seat of the federal government — to mobilize the Guard.”

The judges added that the city’s laws appeared to afford the president unusual flexibility to locally deploy the District of Columbia National Guard and noted that blocking the deployment temporarily would be logistically disruptive were they to ultimately find it had been lawful.

“That would severely disrupt the lives of the affected service members, their families who would have to endure the difficulties of on-again and off-again separations, and the Guard members’ employers, who would have to accommodate their unpredictable absences from and returns to the workplace,” the opinion said.

The panel nonetheless noted that it was responding in a “hurried posture” and had not yet definitively considered one of the lawsuit’s main arguments: that members of the Guard appeared to be involved in law enforcement activity in violation of the Posse Comitatus Act. The law generally bars the use of the military for domestic police work except in extreme circumstances.

The opinion also said that the judges had yet to reach a decision on whether the Trump administration’s command of out-of-state troops in Washington was lawful. The ruling, the judges said, “does not bind” the court moving forward.

The panel promised “a fuller assessment of these issues” when it reconvened in the coming months to consider the underlying legal issues.

“This is a preliminary ruling,” said Gabriel Shoglow-Rubenstein, a spokesman for the D.C. attorney general’s office, which brought the lawsuit. “It does not resolve the merits of our case, which we look forward to continuing in both the district and appellate courts.”

Judges Gregory G. Katsas and Neomi J. Rao, both Trump appointees, joined Patricia A. Millett, an Obama appointee, who wrote the opinion. A lower court judge had ordered that the Guard be removed from the city, but the appeals court had previously stayed the ruling while it considered the matter.

Because of the District of Columbia’s status, the White House had succeeded in keeping a much larger and more ubiquitous force in place in spite of legal pushback from the city. The administration has said the deployment will last until at least the end of February, but the attorney general’s office has also cited government documents in court suggesting that troops could remain “indefinitely” and “potentially through at least the summer of 2026.”

In addition to about 900 members of the D.C. National Guard, the deployment has included an additional force of Guard members sent by the governors of at least 11 Republican-led states, including Georgia, Ohio and West Virginia. After the shootings of two members of the force last month, the governor of Indiana contributed 300 troops. Meanwhile, a group from Tennessee was apparently rotated out, according to the D.C. National Guard’s website.

As of this month, the deployment had grown to as many as 3,180 troops, according to counts by the D.C. National Guard, which has assumed central command over the larger force, according to court filings.

Defense Secretary Pete Hegseth has described troops in Washington as “force multipliers” for local and federal law enforcement. Other officials have described the patrols as “high-visibility” operations, with troops in military uniform brandishing rifles and walking beats.

In challenging their presence, the D.C. attorney general’s office told the court that Guard members had been training for handcuffing and detaining residents and executing search warrants, in violation of Washington’s laws that generally prohibit the military from playing a direct role in law enforcement outside extraordinary circumstances.

In a filing this month, the office argued that the city’s laws allowed the president to call in the equivalent of a state National Guard force only during a “tumult, riot, mob” or other organized violence. Lawyers argued that these preconditions were “plainly” never met.

The filing added that the presence of armed troops from faraway Republican states was clearly unlawful, even though the president had the legal authority to deploy the D.C. National Guard under the city’s law.

“Under the Constitution, a state may not exert its sovereign will in another jurisdiction — let alone deploy military forces into that jurisdiction — without consent,” lawyers for the office wrote.

A brief submitted by 24 Republican-led states supporting the president, including those that contributed troops, asserted the deployment was intended in part to keep their residents who visit as tourists and activists safe. The brief described the District of Columbia as a common area that “belongs to ‘the people’ as a whole.”

Before the Guard deployment, Mr. Trump had claimed the operations in Washington would be focused on crime reduction and “beautification” efforts that primarily involved destroying homeless encampments and displacing their occupants. Guard troops have also been documented cleaning up trash and doing landscaping work around the city’s monuments.

Homicide rates in Washington climbed to 20-year highs after the coronavirus pandemic, but they fell substantially before Mr. Trump took office this year.

At the same time, the National Guard has also been used in Washington to assist with stepped-up immigration enforcement. The Trump administration has used the city as a testing ground for immigration enforcement tactics and referred to it as a model for operations elsewhere, even as judges have found some of those methods to be illegal.

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