Appeals court judges question the government about Trump's DC National Guard deployment

WASHINGTON (AP) — More than a year after President Donald Trump deployed National Guard members to begin patrolling the streets of the nation's capital, a federal appeals court on Wednesday opened a hearing on the legality of his action by asking the government if there were any limits on a president's authority to do so.

The hearing began with the three-judge panel collectively questioning the government’s attorney, Eric McArthur. Judge Cornelia T.L. Pillard asked how the government's argument about an administration's authorities was “not federalization and therefore running up against" the Posse Comitatus Act, an 1878 U.S. law forbidding the use of the federal military for domestic law enforcement unless authorized by the Constitution or Congress.

McArthur, answering Judge Judith Rogers' question on the limits of a president's action, said, “I think the limiting principle in our position is the president has to be calling out the guard in aid of the civil authorities.”

Trump deployed the guard in August 2025 as part of what he said was a crime-fighting mission in Washington, D.C. The force, which rose to a peak of about 5,000 troops over the summer, has supported arrest operations, patrolled city streets and neighborhoods and participated in cleanup efforts.

Trump’s Republican administration says the deployment has contributed to a decrease in crime in the city, where crime was already on the decline before the National Guard arrived. Officials and activists in the overwhelmingly Democratic city say the deployment is a waste of taxpayer money and has normalized the militarization of a major American city.

Mitchell Reich, who was arguing for D.C., did not escape the hearing unscathed, with the panel concentrating on his argument that there are laws and guidelines that lay out a president's ability to call out the guard and there were circumstances when those steps would be unnecessary, including during an invasion or an insurrection.

“If there’s any kind of organized violence in the district, the president can deploy the guard for the purpose of suppressing the same,” he said.

The 90-minute hearing came months after a different three-judge panel paused a lower court’s ruling that Trump's deployment of the guard was illegal.

Three judges who issued the stay last December — two appointed by Trump and one appointed by President Barack Obama, a Democrat — said in a unanimous 32-page ruling that a number of factors favored the Trump administration, including the “disruption to the lives of thousands of service members,” as well as what it said was the president’s interest “in the protection of federal governmental functions and property within the nation’s capital.”

The three judges on the panel on Wednesday were nominated by Democratic presidents: Pillard by Obama, Rogers by Bill Clinton and Bradley Garcia by Joe Biden.

At the heart of the court case, brought by D.C.'s attorney general, is whether the president has the authority to deploy the National Guard to the city, which, as a federal district, has limited autonomy over its own affairs. The U.S. Constitution gives federal lawmakers authority over the District of Columbia, while the Home Rule Act of 1973 lets residents elect a mayor, a council and neighborhood commissioners.

The city has argued that the mobilization is an illegal use of the military for domestic law enforcement, a point Reich made during the hearing.

Last December, the three-judge panel that paused the lower court's ruling said Trump might prevail in his argument that the president “possesses a unique power” to mobilize the guard in Washington.

Those judges found that the district “has not identified any ongoing injury to its statutory interests.”

Even if D.C. wins at the appeals court level, the Trump administration will undoubtedly go to the U.S. Supreme Court, which has already shown deference to the president in a number of cases.

Syracuse law professor William Banks said D.C. might have a slim argument under its home rule, questioning whether National Guard units can be deployed to the city when it isn’t authorized by local law.

But, he said, outside of that argument “there is no overarching federal principle that would bail out the district in this case."

Because D.C. is not a state and because the president is commander in chief, there’s a "tremendous amount of leeway and discretion for the president” to control or delegate control of the local National Guard and out-of-state units, Banks said.

U.S. District Judge Jia Cobb concluded last November that Trump’s military takeover in Washington illegally intrudes on local officials’ authority to direct law enforcement in the district.

Cobb, a Biden nominee, found that while the president does have authority to protect federal functioning and property, he can’t unilaterally deploy the D.C. National Guard to help with crime control as he sees fit or call in troops from other states.

The appeals court stayed the order and has allowed the guard to remain in place while the case is pending.

The mobilization, extended until January 2029 by the Defense Department, has taken on a sense of permanence, despite the court case.

The federal government awarded a $292 million contract to a private company to provide members of the Joint Task Force-D.C. with apartments. The numbers have grown as well, ballooning to around 5,000 during the height of the semiquincentennial celebration. As of last week, that number had dropped to about 2,900.

Before the hearing began, several dozen people rallied outside the courthouse to oppose the continuing presence of the military in the city.

David Barrows, a retired office manager and city resident, was dressed in a Trump costume. “It’s easier to boss around the people in Washington, D.C., because we don’t have any representation in either House or Congress. So we’re basically an abused people,” he said. “We pay the highest federal taxes in the land, and we get no representation in both houses. So we’re a cheated people, and we’re scapegoats for Trump.”

He also questioned the premise of the guard's presence: “There's no national emergency here in Washington,” he said.

Jennifer Pace, a longtime resident and former banker, said she suspected the case would continue through the courts.

“But I really want it to move forward so they can just go home,” Pace said. "I’m sure they want to go home, too, because it’s clear they’re bored. They’re just standing around.”