The U.S. Court of Appeals for the D.C. Circuit has granted an emergency stay pending appeal, effectively pausing the district court’s order that sought to immediately withdraw National Guard troops deployed in the District of Columbia. The appellate court signaled that the federal defendants—including President Trump and the Department of Defense—are likely to prevail on the merits of their argument that the deployment was lawful, particularly concerning the unique status of the nation’s capital.
The decision, issued late last month, reverses a preliminary injunction issued by the District Court on November 20, 2025, which had ruled that the deployment of both the D.C. National Guard and National Guard units from several states violated federal and local law.
Stay Granted Based on Likely Success on Merits
A stay pending appeal is considered an “extraordinary remedy,” requiring the moving party to demonstrate four key factors: a strong likelihood of success on appeal, irreparable injury without the stay, minimal harm to other parties, and favor from the public interest.
The three-judge panel—Circuit Judges Millett, Katsas, and Rao—concluded the federal defendants met this burden. Judge Millett, writing for the majority, focused heavily on the legal basis for the deployment under Title 32 of the U.S. Code and the specific statutes governing the D.C. National Guard.
The deployment, initiated by a Presidential Memorandum on August 11, 2025, involves over 2,000 Guard members from the D.C. Guard and units from nine states, tasked with supporting local law enforcement in addressing violent crime.
The Authority to Deploy the D.C. Guard
The Court found strong preliminary evidence suggesting the President likely has the authority to mobilize the D.C. National Guard. The opinion emphasizes the unique constitutional role of the District of Columbia under the District Clause (Article I, Section 8), which grants Congress “exclusive legislation” over the seat of government.
The D.C. Code establishes the President as the Commander-in-Chief of the D.C. militia. The appellate court noted that the statute allows the President to order out the Guard “Whenever it shall be necessary” and that the Commanding General of the D.C. Guard is explicitly designated as an “employee of the Department of Defense, and of the United States,” not the District government.
The district court had interpreted D.C. Code § 49-103—which allows specific federal and local officials to *request* the Guard be called out—as a limitation on the President’s power. The D.C. Circuit disagreed, finding the language permissive, not restrictive, and stressing that limiting the President’s authority to act only upon request from subordinates would be an “untenable reading.”
State Guards Under Title 32 Authority
Regarding the out-of-state units operating under Title 32 status, the Court examined 32 U.S.C. § 502(f)(2)(A). This section permits Guard members to perform “training or other duty” at the “request of the President or Secretary of Defense.”
The District argued this provision only covered training, but the Court found the text distinguished between “training or other duty” under subsection (f)(1) and the specific authorization in (f)(2)(A) for “operations or missions” requested by the President, noting Congress intentionally omitted the word “training” in that specific authorization. Furthermore, the legislative history indicated this section was expanded following Hurricane Katrina to cover a “full range of diverse 21st century missions.”
Crucially, the Court noted that Title 32 deployments require the consent of the mobilizing state’s commander-in-chief (the Governor), which was reportedly obtained in this case. This contrasts with a full federalization under Title 10, which does not always require gubernatorial consent.
The Court also dismissed the district court’s reliance on the Emergency Management Assistance Compact (EMAC) as the sole avenue for interstate Guard deployment, clarifying that EMAC is merely an *additional* authorization pathway, not a restriction on federal authority under Title 32.
Irreparable Harm and Public Interest Favors Stay
The appellate panel found that forcing the withdrawal of over 2,000 Guard members, who have been deployed for four months, would cause “profound” disruption to service members and their families. This risk of repeated, disruptive withdrawal and reinstatement pending final litigation weighed heavily in favor of granting the stay.
Additionally, the Court cited the “strong and distinctive interest” in protecting federal governmental functions and property in the Nation’s Capital. The opinion noted that federal agencies like the U.S. Park Police and U.S. Marshals Service have organized their operations around the Guard’s presence.
The Court preliminarily determined that the District had not established ongoing injury because its claimed harm was contingent upon it prevailing on the merits—a likelihood the Court now views as low.
Concurrence Raises Question of Standing
In a separate concurring statement, Circuit Judge Rao, joined by Judge Katsas, raised a significant, though secondary, issue: whether the District of Columbia even has Article III standing to sue the federal government over injuries to its “sovereign power.”
Judge Rao argued that the District is a federal enclave and a municipal corporation, lacking the independent sovereignty of the fifty states. Citing historical practice and precedent, the concurrence suggested that the District’s claim of sovereignty-based injury is “untenable.” While the majority did not base its stay ruling on standing, Judge Rao urged that this “important jurisdictional question should be given further consideration” in future proceedings.
The D.C. Circuit’s order dissolves the administrative stay previously put in place on December 4, 2025, and grants the defendants’ motion for a stay pending appeal, allowing the National Guard deployment to continue while the case proceeds.