Who has legal authority to approve a National Guard deployment to assist the U.S. Capitol Police?
Executive summary
Legal authority to approve National Guard forces at the U.S. Capitol is divided and conditional: the District of Columbia National Guard is under federal control and can be mobilized by the president (or through delegation to the secretary of defense), while out‑of‑state Guard forces ordinarily require a governor’s approval and, for employment on federal property like the Capitol, Department of Defense authorization; Congress’s own policing authority—exercised through the Capitol Police and the Capitol Police Board—also plays a central role in requesting assistance [1] [2] [3].
1. Who technically "owns" the D.C. Guard: presidential control and its consequences
Unlike state National Guards, the District of Columbia National Guard reports to the president rather than a mayor or governor, which gives the president direct authority to activate it for domestic missions in D.C.; scholars and advocates warn that this federal control means the president can deploy D.C. Guard troops without invoking the Insurrection Act, creating a legal pathway for presidential use in the capital that does not exist for most states [1] [4].
2. The Capitol’s gatekeepers: Capitol Police, the Capitol Police Board, and requests for assistance
Operationally, the Capitol Police chief and the Capitol Police Board (the Architect of the Capitol, the House Sergeant at Arms and the Senate Sergeant at Arms) are the institutions that request outside assistance for the Capitol grounds—officials have said the Board has the authority to request the National Guard to the Capitol and that the Capitol Police must be the initiating request for Pentagon approval to step onto Capitol grounds [3].
3. State National Guards: governor primacy and federalization exceptions
For National Guard forces organized under state authority, governors control activation for state missions and can send their troops to D.C. or elsewhere at their discretion; if the president seeks to federalize those troops (bringing them under federal Title 10 control), different statutory pathways apply and federalization can change law‑enforcement limitations that would otherwise bind the Guard [5] [6] [2].
4. The Pentagon’s deconfliction and approval role
Even when a Capitol request is made, the Department of Defense must authorize Guard units to operate on Capitol grounds, creating a critical Pentagon gate in practice: January 6 after‑action reporting shows Defense leaders saying they needed Capitol Police authorization and Pentagon approval for Guard forces to enter the complex, and Army leadership flagged the need for DoD authorization for out‑of‑state Guards entering D.C. [3] [6].
5. Statutory limits that shape “who can approve” — Posse Comitatus, the Insurrection Act, and Title 10/32 authorities
The Posse Comitatus Act generally prevents the federal military from performing civilian law enforcement absent explicit statutory authorization, and authorities like the Insurrection Act or specific Title 10/32 provisions define narrow exceptions; recent litigation and scholarly analysis show courts scrutinizing novel federal claims to federalize state Guard units (Section 12406 and related provisions) and emphasize that presidential federalization as a tool is not an unfettered power [7] [8] [2] [9].
6. January 6 and the real‑world chain of approvals — lessons and political friction
January 6 exposed brittle boundaries: Capitol Police leadership asserted the need for Guard support, governors offered forces, the D.C. Guard’s federal status complicated response timelines, and Pentagon officials repeatedly said they needed explicit authorization tied to a Capitol request before troops could redeploy to the grounds—reports and analyses point to delays tied to confusion over who requested what and who could legally clear forces to act [3] [6] [4].
7. Bottom line and competing narratives
Legally, no single actor has a free‑standing unilateral prerogative for every Guard deployment to assist the U.S. Capitol: the president controls the D.C. Guard and can federalize forces under limited statutes, governors control their state Guards for state missions, the Capitol Police/Board must normally request assistance for the Capitol and the Pentagon must authorize federal military forces to operate there; disputes about these authorities have been litigated and politicized, and observers from Brennan Center and other analysts argue the current legal patchwork creates loopholes and incentives that sometimes delay timely responses [1] [5] [3] [7].