On Wednesday, President Trump and his administration celebrated another legal victory as the D.C. Circuit Court of Appeals granted their request to pause a lower court’s injunction that had prohibited the Trump administration from deploying or asking for the deployment of National Guard members in the District of Columbia.
In August, President Trump released a memorandum instructing the Secretary of Defense to activate the National Guard of the District of Columbia to combat violent crime and ensure public safety in the area, as well as to coordinate with state governors to send additional National Guard units from various states to the capital.
In September, Washington D.C. initiated a lawsuit against President Trump, the Department of Defense, Secretary of Defense Pete Hegseth, the U.S. Army, Secretary of the Army Dan Driscoll, the Department of Justice, Attorney General Pam Bondi, the U.S. Marshals Service, and the Director of the U.S. Marshals Service, Gadyaces S. Serralta, claiming that the deployment of both the D.C. Guard and State Guards infringes upon the Administrative Procedure Act. D.C. then sought a preliminary injunction in the case.
In November, Judge Jia Cobb of the D.C. District Court granted a preliminary injunction, but also deferred her decision for 21 days, allowing the administration time to file an appeal, which they did without delay.
The Circuit Court of Appeals first implemented an administrative stay on December 4, but with the order issued on Wednesday, that stay has been lifted in favor of a formal stay pending appeal. It is significant that the decision is per curiam; however, it comes with a statement written by Judge Patricia Millett (an appointee from the Obama administration), which is supported by Judges Neomi Rao and Gregory Katsas (both appointees from the Trump administration).
Millett’s statement spans 27 pages and is quite clear. It provides a valuable overview of not just the timeline of the case but also the creation of the National Guard and the legal foundations for its use, along with the formation of the District of Columbia and its governing structure — a compelling read for those interested in gaining a deeper understanding of the historical context.
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Millett gets to the crux of the case this way:
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Because the District of Columbia is a federal district created by Congress, rather than a constitutionally sovereign entity like the fifty States, 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 under 32 U.S.C. § 502(f). It also appears likely that the D.C. Code independently authorizes the deployment of the D.C. Guard.
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In sum, the Defendants are likely to show that Section 502(f)(2)(A) authorized the President and the Secretary of Defense to request that both the D.C. Guard and the State Guards undertake a federal mission in the District.
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In sum, considering the many provisions of the D.C. Code that identify the President’s status as Commander in Chief of the D.C. Guard alongside those that enable the D.C. Guard to assist civil authorities in preserving the operations of the seat of federal government and protecting the Nation’s Capital, the Defendants are likely correct that the President acted consistently with District law in directing the deployment of the D.C. Guard.
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In short, because of the District’s unique constitutional status as a federal territory, the Nation’s Capital, and the seat of federal government, as well as the President’s consent to receive these forces, the Defendants have demonstrated that the district court likely erred in concluding that the deployment of out-of-state guard members to the District raised a serious federalism question under the Constitution.
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Absent a stay pending appeal, the district court’s order also risks the back-and-forth withdrawal and redeployment of guard members pending the completion of litigation.
In a separate statement, Rao even goes on to express doubt that D.C. even has proper standing to bring the litigation:
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I write separately to highlight an additional reason the President and other federal officials are likely to succeed onthe merits of their appeal: the District of Columbia may lack Article III standing to challenge the deployment of National Guard troops in the District.
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We have never recognized that the District possesses an independent sovereignty that can give rise to an Article III injury from actions of the federal government. Such an injury is likely untenable as a matter of first principles and finds no support in our precedent or historical practice.
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To begin with, a theory of sovereign injury is inconsistent with the District’s legal status.
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While Congress has provided the District with a certain degree of self-governance, we have never recognized that the District has standing to sue the President and federal officers for sovereignty-based injuries.
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In finding standing, the district court relied exclusively on cases involving state standing to sue federal entities, but no one suggests that the District has the same sovereignty as a State.
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In their motion for a stay, the Defendants did not object to the District’s standing. Article III courts, of course, have an independent obligation to verify their jurisdiction. Permitting the District to sue the President and other federal officials based on a sovereign injury is unprecedented and likely at odds with the unique legal status of the District. In subsequent proceedings, this important jurisdictional question should be given further consideration.
To be clear, this isn’t the end of the line for the case. D.C. could always seek rehearing en banc. And, as Millett rightly notes in her statement, “This decision does not bind the merits panel, which will engage in a fuller assessment of these issues.” Keep in mind that this decision only relates to temporarily suspending the district court’s injunction while the appeal is resolved on its substance.
Additionally, it’s important not to overinterpret this ruling concerning the other ongoing National Guard cases, as those pertain to federalization and deployment within states, rather than a federal district such as D.C. However, a victory is still a victory, and this serves as one for the administration.
