We discussed earlier how President Donald Trump repeatedly asserted constitutional authority that he does not have to deal with the pandemic. The President routinely ignored the principles of federalism in such claims of state control when making decisions about internal health and policing. He is not alone. Cities like Portland have requested that federal officials leave the city and no longer be arrested. While legitimate questions are raised about federal officials' behavior in detention and violence in Portland, these concerns related to the use of federal powers rather than the basis for those powers. The federal government has full authority to protect federal buildings and carry out federal crime arrests in any city. Current reports from the White House appear to refer to the growing law enforcement personnel that are not deploying military personnel. This would be constitutional if it were used to protect federal assets or to enforce federal laws. That is the downside of federalism. But what about the recent claims that the president will take over the police from cities like Chicago? The answer is that without a request from the governors, such a federal effort would be unwise, but legal. However, there are practical and legal reasons why such massive use is unlikely.
President Trump has announced that he will send federal forces to suppress violence in cities such as New York, Chicago, Philadelphia, Detroit, Baltimore and Oakland, California. He used these threats to highlight the bad records of "Liberal Democrats" like the Mayor of Chicago, Lori Lightfoot. The President's constant reference to the Mayor's party affiliation only diminishes the position of the Federal Government, which is taking action in these cities.
As many in this blog know, I'm from Chicago and most of my family still lives there. I am devastated by the violence that is shown on TV every night. However, President Trump proposes an unprecedented effort when he seriously says, "We are sending law enforcement agencies. We cannot allow this to happen to cities."
What he can clearly do is what he did in Portland. Send in federal forces to protect federal buildings and arrest those who commit federal violations. This can lead to a growing presence. If more demonstrators respond to the federal presence, federal forces can be expanded at their own discretion to meet this challenge. It can become a cause-and-effect controversy, as raised in Portland. However, a judge who orders the federal forces to cut back or leave the city would, in my view, be subject to a quick appeal and reversal.
This type of use to protect federal enclaves and buildings can be carried out without special proclamations or instructions. It is part of the inherent authority of the federal government. In fact, it doesn't even require a special executive order. The Attorney General or the Minister of Internal Security may use federal officials to protect buildings, support law enforcement, or carry out arrests. These are not military troops, but law enforcement officers to whom law enforcement tasks are delegated. The fact that cities have not requested additional federal law enforcement personnel is relevant to the legality of their deployment.
President Trump's rhetoric suggests something far more robust. It relates to rising shootings and criminal acts in these cities. To combat such a crime, the federal government would have to be massive. First of all, there is the question of simple practicability in such claims. The deployment of a few hundred federal officials will do little to suppress violence in the Chicago neighborhoods, far from federal buildings. On a practical level, it is difficult to see how even a military force could impose martial law on millions of Americans. Most of these shootings took place in areas far from riots or protests. The Chicago Police Department has approximately 12,000 officers. The First Army Division consists of around 18,000 soldiers. It would require a split or more to significantly increase patrol in actual neighborhoods, unlike hotspots like those in federal buildings. President Lyndon Johnson did, of course, in 1967 when he sent the 82nd and 101st Airborne Divisions to Detroit to quell the unrest after Martin Luther King's murder.
Second, there is authority. We have already discussed this issue in relation to Washington, DC, and Seattle, where I criticized the President for exaggerating his authority to send troops. I have also criticized the respective mayors in these cities for their own statements.
As I have already said. Police powers in the United States are largely with the States. The Constitution gives Congress the power to overcome disruptions. It can "provide that the militia be asked to enforce union laws, suppress riots, and ward off invasions."
With the Insurrection Act, Congress authorized presidents to deploy troops in response to riots that "refuse to, or impede, the implementation of United States law or the legal process under those laws." The president can intervene at the request of a state parliament to suppress an uprising. The Insurrection Act also allows unilateral action in cases of illegal disability, gatherings or rebellion against the United States.
President Trump has unilateral authority under the law. Indeed, recent efforts by Democratic members like Rep. David N. Cicilline to limit the Uprising Act confirm that he is able to make such a unilateral proclamation. It can be challenged as unjustified, but Congress has re-enacted a law that gives largely unrestricted authority to declare such unlawful obstacles, gatherings, or rebellions against the United States.
The law simply says:
"Whenever the President considers it necessary to deploy the militia or the armed forces under this chapter, he will immediately order the insurgents by proclamation to peacefully disperse and retreat peacefully to their homes within a limited time."
This power has been used repeatedly by presidents since Thomas Jefferson. The last president to do this was President George H.W. Bush during the 1992 Los Angeles riots, an obvious historical precedent that the Trump White House would cite to deal with riots in cities like Portland. While the Posse Comitatus Act of 1878 prevented the use of the U.S. military in law enforcement, this act is an exception to this rule, which is large enough to enforce an Army division.
It is certainly true that the President has largely implemented the law at the invitation of local and state authorities. However, this is not necessary and has not always been the case.
Presidents have used the law repeatedly to fight the Ku Klux Klan, enforce desegregation, and protect African-American students. This happened without government officials approval when President John F. Kennedy sent federal marshals to Mississippi in 1962 to allow black students to enroll in classes at the University of Mississippi, Oxford. It has been used repeatedly to suppress riots and looting.
So it could be used by President Trump to suppress the unrest in these cities. That doesn't mean it is the right move. In my opinion it wouldn't. The shootings that President Trump refers to in killing young children are the result of criminal acts rather than riots or looting. We have not seen the use of this law to suppress a crime wave. The law does not leave much room for judicial review, but the application of the law to combat increasing crime could raise some novel problems for a court. However, the language of the law favors the president.
There are other possible challenges that are more conventional. I am again very concerned about the allegations that citizens were taken up by federal agencies and detained for hours before they were released without charge. These allegations raise serious questions of due process and their implications for protected freedom of expression activities cannot be denied. There has been considerable violence by demonstrators in Portland, but most are non-violent. An investigation into the behavior of federal officials should be carried out to confirm the basis for these arrests and the treatment of these people in federal custody. It is not illegal per se to use unmarked cars for arrests. In fact, it happens all the time. Local officials and protesters, however, claim that people were effectively pulled from the streets and blindfolded away – only to be released hours later. Federal officials deny these allegations and insist that they are individual suspects who have been detained for certain suspected federal crimes. They also find that the officers were clearly identified as police and insist that they tell the suspects who they were. So we have a contradictory record. That is why we need an independent investigation.
I recently testified in Congress about the Lafayette controversy. I identified two main areas of possible illegal behavior (including a clearly unjustified attack on a media crew) and suggested a series of investigations to confirm the facts. I also stated that I believed that the order to clear the parking area to allow the establishment of a new fence line was lawful and that the federal forces followed the guidelines to resolve three clear warnings. There is now also evidence that appears to contradict the widespread claims that the plan is related to the Trump photo in front of the church. The point is that many of the initial allegations (widely reported as fact) have not been substantiated and have actually been contradicted. This does not mean that the federal forces have not acted unlawfully. I told Congress that I expect the investigation will ultimately be limited to the police, rather than the plan or agency to clear the area. When reviewing the videotapes of the line of charges, I believe that the use of violence was unlikely to be unjustified and unlawful.
I am assuming that we will get the same results in the Portland controversy. As with the DC protests, it is clearly wrong to portray the peaceful protests in Portland. A large number of officers were seriously injured and significant property damage, including arson, occurred. The police have the right to protect themselves and the courts generally allow the use of non-lethal violence in such circumstances. But like most people, I was shocked by the image of a person being hit in the head with a projectile from the courthouse across the street. Such excessive use of violence can occur with any surgery, but it is important that we determine if there is a pattern for such behavior. Any major injunction would require more than a few incidents. It would require a pattern of clearly excessive behavior.
I still believe that massive troop deployment would be a mistake. In our system of federalism, state and local officials have primary responsibility for fighting crime on the streets. There are plenty of reasons to criticize the actions or lack of action by majors in Seattle, Portland and Chicago. However, they are the elected officials who have been given these powers by their voters. In addition, marching into these cities with large federal forces would inflame the situation and would likely have no impact on actual crime by cities like Chicago.