On Aug. 11, President Trump ordered around 800 National Guard troops to assume control of policing our nation’s capital — something that was done frequently in the 1960s but had not been done since the Nixon administration.
According to CBS News, crime has fallen since the takeover, including violent crime down by 49%. Yet criticism came quickly from the left who felt Trump’s action was federal overreach, any plans of using the National Guard in other cities as unconstitutional and Trump’s use of troops is a first step toward a dictatorship.
While sending troops into American cities can be problematic, it’s not unprecedented. And using troops in Washington falls under the authority of the federal government.
A little-known event happened during the Continental Congress on June 21, 1783, when some 80 Pennsylvania soldiers and veterans of the Revolutionary War marched on Philadelphia to demand their unpaid wages. Congress had no power to act and so relied on the city or state leadership for protection. When no protection was forthcoming, Congress was forced to adjourn and move their meeting to New Jersey for protection. Once safely back in Philadelphia, delegates added Clause 17 to Article I, Section 8.
Article I is about the Legislature; Clause 17 states that the Legislative branch has the power, “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.”
This clause gives the federal government complete power to govern Washington, D.C. The idea was that if the Capitol was housed in a state, that state would wield too much influence over the federal government. By creating a district, Congress was in full control and had the power to protect themselves so as not repeat the situation in Philadelphia.
D.C. residents today are allowed to elect a mayor and a city council, but Congress still has the power to override any local decisions. In most states, the National Guard is under the authority of the governor. But, as D.C. is not a state and has no governor, the President is the head of the D.C. National Guard.
It is important to note the Clause 17, “the District Clause,” gives the authority to Congress — not the president. Yet, over the years, a series of laws have been passed that grant the president more authority.
In 1801, our Capitol was permanently moved to the banks of the Potomac River when Congress passed the Organic Act, formally organizing the District of Columbia under federal control.
The district retained local laws but put courts and justices of the peace under federal authority. The act also stripped away the citizens’ voting rights as they were not a state, and D.C. did not have any local or federal representation.
In 1889, Congress passed what is known today as 49-409 of the D.C. Code — a series of laws governing Washington, D.C., since its founding — which states, “The President of the United States shall be the Commander-in-Chief of the militia of the District of Columbia.” Though several amendments have been made to 49-409, those words have never changed.
In 1961, the enactment of the 23rd Amendment gave D.C. citizens the right to vote in presidential elections. The amendment allowed for the same number of electors as the smallest state: three.
However, it still did not allow them representation in Congress.
With 1973’s District of Columbia Home Rule Act, D.C. residents were granted the right to elect a mayor, a city council and a nonvoting member to the U.S. House of Representatives, yet Congress was still supreme and could change any law passed by the city council. It is important to note that the President retained the power over the National Guard.
As stated, Trump is not the first to use the National Guard to protect the capital. Both Lyndon Johnson and Richard Nixon did so.
Johnson to protect D.C. from riots in 1968 after the assassination of Martin Luther King Jr., and Nixon in 1970 as he tried to suppress tensions after the invasion of Cambodia. As for other cities, except for Jimmy Carter, every U.S. president since Chester Arthur has called up the National Guard to maintain peace in our nation — even in the 1950s and 60s, in states where the Guard was not welcome nor invited by the governor.
Does sending the National Guard into American cities to act as a police force pass constitutional muster? Maybe.
But that will be up to the courts to decide.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He may be reached at Historically-Speaking1776@gmail.com.
