Washington is first and foremost a federal enclave and the creation of Congress. it is subject to the limits of Home Rule and the federal government has far greater leeway in the use of personnel within its borders than other cities.
The question of such authority turns on Section 1-207.40 which states
“(a) Notwithstanding any other provision of law, whenever the President of the United States determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for federal purposes, he may direct the Mayor to provide him, and the Mayor shall provide, such services of the Metropolitan Police force as the President may deem necessary and appropriate.”
First and foremost, “emergency” is not clearly defined. I have been a long critic of Congress creating such sweeping laws without meaningful conditions or criteria. That was the case with the National Emergencies Act, which we discussed in relation to the funding of the Southern border wall. It is highly doubtful that a court would question whether rioting is an emergency but the law itself seems to leave that designation to the President.
Second, the law is written in mandatory terms without no qualifications. The law gives the President the discretion (“may direct”) and gives the Mayor a mandatory obligation (“shall provide”) the services specified by the President. There is nothing about Mayor Muriel E. Bowser (D) agreeing or consenting to the demand. She must provide the services.
The most significant limitation is temporal.
“In no case, however, shall such services made available pursuant to any such direction under this subsection extend for a period in excess of 48 hours unless the President has, prior to the expiration of such period, notified the Chairmen and ranking minority members of the Committees on the District of Columbia of the Senate and the House of Representatives, in writing, as to the reason for such direction and the period of time during which the need for such services is likely to continue.”
Moreover the District often calls upon federal agencies to back up its own crowd control efforts. For that reason, the resistance of the Mayor could prove both practically and legally dubious.
John Falcicchio, the chief of staff for Mayor Bowser, is quoted as saying that “We believe we are firm in our understanding that what was presented yesterday would not be a prudent move.” Prudence however is not an element to the law. There is just a demand and an obligation.
This does not technically amount to a “takeover.” The D.C police would retain its command and unit structure. D.C. is required to perform the designated task, not turn over total control.
Notably, New York Gov. Andrew Cuomo yesterday referenced the same type of executive control for the very same reason: dissatisfaction with the actions of New York Mayor Bill de Blasio and failure to protect businesses and citizens: “The NYPD and the mayor did not do their job last night, I believe that.” He added that he has the authority “to displace the mayor … bring in the National Guard” and “take over” but did not believe that ‘we’re at that point.”
None of this means that such a move is needed or wise. Indeed, for Washington, it would be viewed as deeply intrusive and insulting. In other words, Bowser may be right that it would not be “prudent” but that does not really matter.