Attorneys representing the government faced pointed questioning Wednesday from a federal appeals court panel — now more than a year into National Guard deployments across the capital — about whether any constitutional limit constrains a president's authority to call up the guard within Washington, D.C.
Opening arguments before the three-judge panel turned first to Eric McArthur, the government's attorney, who faced a round of questions from all three jurists before proceedings moved forward. The presiding officer in the matter was Judge Cornelia T.L. Pillard, who turned to the government's attorneys with a pointed line of inquiry: how did the administration's claimed powers fall short of federalization — and, by extension, sidestep the constraints imposed by the Posse Comitatus Act, the 1878 law prohibiting the use of federal military personnel in domestic policing unless the Constitution or an act of Congress expressly permits it?
These court proceedings are unfolding against a backdrop shaped by an appellate stay — issued months prior — that put enforcement of a lower court ruling on hold, one that had found the guard deployment directed by President Donald Trump to lack lawful authority.
The National Guard was mobilised in Washington, D.C. in August 2025 under an order from Trump, who framed the deployment as an effort to address crime in the city. At its height over the summer, the deployment numbered around 5,000 personnel and took on duties ranging from assisting in arrest operations and walking city streets and residential areas to joining in post-incident cleanup work.
Officials pointed to the National Guard presence as the reason crime figures dropped, yet available statistics placed the downward trend before any troops had set foot in the area. City officials and community advocates have described the deployment as an inefficient use of public funds that has brought a level of military-style presence to a large urban area.
All three members of the panel received their nominations from Democratic administrations — Pillard put forward by Barack Obama, Bradley Garcia by Joe Biden, and Judith Rogers by Bill Clinton.
At the heart of the D.C. attorney general's lawsuit sits a disputed point of constitutional law: whether a president holds the authority to send National Guard troops into the district, a jurisdiction whose position as federal territory affords it fewer self-governance protections than those available to any of the fifty states. Under the U.S. Constitution, Congress holds jurisdiction over the District of Columbia, though passage of the Home Rule Act in 1973 opened the door for residents to vote in a mayor, a council, and neighborhood commissioners of their own choosing. Municipal authorities contend that deploying troops in this context runs counter to federal statutes governing the separation of military and civilian law enforcement functions.
The appellate panel that paused the lower court's order in December found legally defensible ground in the argument that presidential authority over National Guard deployment within Washington carries its own constitutional footing. In a unanimous 32-page opinion, the appellate panel held that additional considerations weighed in the administration's favor — among them the potential disruption to thousands of service members' lives and the executive's stated interest in safeguarding federal operations and property within the nation's capital — while concluding that the district had not pointed to any continuing harm to its statutory interests.
William Banks, a law professor at Syracuse University, raised the possibility that the district retains a narrow avenue through its home-rule provisions, centered on whether National Guard units can lawfully be sent into the city absent authorization under local law. Setting aside that argument, Banks explained that no broader federal principle exists that would resolve the matter in the district's favour, and that the president holds wide authority — rooted in the commander-in-chief role and the district's non-state status — to direct or assign control over both the local National Guard and units drawn from other states.
Margaret Hu, a law professor at the William and Mary School of Law, noted that one concern flagged in court briefs by states backing the deployment centred on the position that the president had been acting in response to an emergency situation. Hu noted that the open-ended character of the deployment leaves room for a legal challenge, pointing to a view held by some legal commentators that no emergency justification can be claimed when a troop presence carries no defined end date.
A ruling handed down by U.S. District Judge Jia Cobb last November held that the deployment of military personnel in Washington under Trump's direction unlawfully encroaches on the authority of local officials to oversee law enforcement operations in the district. The ruling Cobb reached acknowledged that presidential authority extends to safeguarding federal operations and property, yet found that unilateral deployment of the D.C. National Guard for public safety purposes — authority the judge held belongs to the governor — including the ability to request personnel from neighbouring states, exceeded that scope.
The judge paused enforcement of her ruling for three weeks, giving the administration time to pursue its appeal. A stay granted by the appeals court has kept the guard in place for the duration of the pending proceedings.
The order, which the Defense Department extended through January 2029, has shown little sign of winding down, with the ongoing legal proceedings doing nothing to alter that trajectory. A $292 million contract, drawn from federal funds, went to a private firm tasked with providing personnel to Joint Task Force-D.C. Attendance figures climbed to a peak of around 5,000 at the height of the deployment. By the close of last week, that figure had fallen to roughly 2,900.
