Amicus With Dahlia Lithwick | Law, justice, and the courts Is The National Guard Coming To Your City?
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Aug 30, 2025 Elizabeth "Liza" Goitein, a senior director at the Brennan Center for Liberty and National Security and a renowned expert on presidential emergency powers, joins the discussion. They delve into the controversial deployment of the National Guard in D.C., raising alarms about civil liberties and the potential for military overreach. Goitein highlights the legal frameworks that govern this issue, emphasizing the risks of federalizing the National Guard and concerns over the erosion of democratic principles. The conversation underscores the vital need for vigilance against authoritarian trends in governance.
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When Military Action Becomes Policing
- Courts view military use as policing when it pervades civilian operations or compels civilians.
- Face-to-face interactions where soldiers exercise compulsory power trigger Posse Comitatus concerns.
D.C. Guard Creates A Major Loophole
- The Posse Comitatus Act doesn't usually apply to state-controlled National Guard unless federalized.
- DOJ treats D.C.'s Guard as a loophole because the president has default control there.
Title 32 Creates Hybrid Control Risk
- Title 32 creates a hybrid Guard status: state command legally, but often federal missions in practice.
- That hybrid status evades Posse Comitatus while enabling de facto federal control.