Strauss Center News

Updates from the Strauss Center and our affiliated distinguished scholars and fellows


Vladeck Weighs in on the Presence of National Guard Troops in Washington D.C.

Jun 29, 2020 |

Stephen Vladeck, A. Dalton Cross Professor in Law and Distinguished Scholar at the Strauss Center, recently published a Lawfare article titled “Why Were Out-of-State National Guard Units in Washington, D.C.? The Justice Department’s Troubling Explanation.”In it, Vladeck assessed Attorney General William Barr’s explanation of the presence of thousands of National Guard troops in Washington D.C.—an incident which Barr claims occurred under the authority of 32 U.S.C. § 502(f). This explanation, Vladeck argues, illustrates a legal loophole which Congress ought to address. Vladeck then defines the three “hats” of status which the National Guard can fall under, noting that the distinction of the variety of service National Guard troops are operating under matters as it indicates who can be held liable, what government is paying for the troops, and what these troops can be asked to do. Vladeck presents the particular text of the provision which Barr cited as the source of authority for bringing in National Guard troops from outside the D.C. area, highlighting its particular points of vagueness which led to this questionable legal interpretation, and providing insight into its origins. Vladeck concludes by underscoring the ambiguity of the incident, noting that “Either § 502(f) does allow the federal government to use out-of-state National Guard troops as it did last week in Washington—for any purpose and under federal control—which is deeply concerning and crying out for some kind of legislative reform. Or it doesn’t, and upward of 5,000 out-of-state National Guard troops were unlawfully deployed to Washington last week.” Read the full article here.