We have previously discussed how President Donald Trump has repeatedly asserted constitutional authority that he does not have in dealing with the pandemic. The President routinely ignored the principles of federalism in such claims of control over states in their internal health and policing decisions. He is not alone. Cities like Portland have demanded that federal officers leave the city and stop making arrested. While there are legitimate questions raised about the conduct of federal officers in putting people into custody and the use of force in Portland, those concerns related to the use of federal powers, not the basis for those powers. The federal government has full authority to protect federal buildings and to carry out arrests for federal crimes in any city. Current reports coming out of the White House appear to refer to surging law enforcement personnel, not sending military personnel. That would be constitutional if used for protect federal assets or enforce federal laws. That is the flip side of federalism. But how about the recent claims that the President is about to take over policing from cities like Chicago? The answer is that such a federal deployment without a request from the governors would be unwise but would be legal. However, there are practical and legal reasons why such any massive deployment is unlikely.
President Trump has declared that he will send in federal forces to quell the violence in cities like New York, Chicago, Philadelphia, Detroit, Baltimore and Oakland, California. He has used these threats to highlight what he calls the poor records of “liberal Democrats” like Chicago’s Mayor Lori Lightfoot. The constant reference to the party affiliation of the mayors by the President only diminishes the position of the federal government is taking any action in these cities.
As many on this blog know, I am from Chicago and most of my family still lives there. I am devastated by the violence shown every night on television. However, President Trump is suggesting an unprecedented deployment if he is serious in saying “We’re sending law enforcement. We can’t let this happen to the 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 offenses. That can lead to an expanding presence. As more protesters respond to the federal presence, the federal forces can be expanded at their discretion to meet that challenge. It can become a cause-and-effect controversy like the one being raised in Portland. However, a judge who orders the federal forces reduced or out of the city would face a rapid appeal and reversal in my view.
That type of deployment to protect federal enclaves and buildings can be done without any special proclamations or orders. It is part of the inherent authority vested in the federal government. Indeed, it does not even require a special executive order. The Attorney General or Secretary of Homeland Security may deployed federal officials to protect buildings, support law enforcement activities, or carry out arrests. These are not military troops, but law enforcement personnel being assigned law enforcement duties. The fact that the cities have not requested additional federal law enforcement personnel is relevant to their legality of their deployment.
President Trump’s rhetoric suggests something far more robust. He is referring to rising shootings and criminal acts in these cities. To combat such crime, the federal deployment would have to be massive. First there is the question of simple practicality in such claims. Sending in a couple hundred federal officers will do little to quell the violence in the neighborhoods of Chicago — far removed from federal buildings. On a practical level, it is hard to see how even a military force could do so short of imposing martial law over millions of Americans. Most of these shootings have occurred in neighborhoods far removed from riots or protests. The Chicago Police Department has roughly 12,000 officers. The First Army Division is roughly 18,000 soldiers. It would take a division or more to substantially increase patrolling in actual neighborhoods as opposed to hotspots like those around federal buildings. Of course, that is what President Lyndon Johnson did in 1967 when he sent in the 82nd and the 101st Airborne Divisions to Detroit to quell riots after the assassination of Martin Luther King.
Second, there is the authority. We previously discussed this issue in relation to Washington, D.C. and Seattle where I criticized the President for exaggerating his authority in threatening to send in troops. I also criticized the respective mayors in those cities for their own statements.
As I have previously stated. police powers in the United States mostly reside with the states. The Constitution gives Congress authority to overcome disturbances. It can “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.”
With the Insurrection Act, Congress authorized presidents to use troops in response to rioting that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The president may intervene if requested by a state legislature to suppress an insurrection. The Insurrection Act also allows for unilateral action for cases of unlawful obstruction, assemblies, or rebellion against the United States.
President Trump does have unilateral authority under the law. Indeed, the recent efforts in the House by Democratic members like Rep. David N. Cicilline to limit the Insurrection Act acknowledges that he does have the ability to make such a unilateral proclamation. It can be challenged as unwarranted but, once again, Congress has written a law that gives largely unfettered authority in declaring such unlawful obstruction, assemblies, or rebellion against the United States.
The law simply states:
“Whenever the President considers it necessary to use the militia or the armed forces under this chapter, he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.”
This power has been used repeatedly by presidents since Thomas Jefferson. The last president to do so was President George H.W. Bush during the 1992 riots in Los Angeles, an obvious historical precedent that the Trump White House would cite to handle riots in cities like Portland. While the Posse Comitatus Act of 1878 prevents the use of the United States military in law enforcement, this Act is an exception to that rule large enough to drive an Army division through.
It is certainly true that President have largely used the Act at the invitation of local and state authorities. However, that is not required and that has not always been the case.
Presidents have used the act repeatedly to fight the Ku Klux Klan, enforce desegregation, and protect African American students. This has been done without approval of the state officials as when in 1962, President John F. Kennedy sent in federal marshals to Mississippi to allow black students to enroll in classes at the University of Mississippi at Oxford. It has been used repeatedly to quell rioting and looting.
Thus, it could be used by President Trump to quell rioting in these cities. That does not mean that it would be the right move. In my view, it would not. The shootings that President Trump is referencing in the killing of young children are the result of criminal acts rather than the rioting or looting. We have not seen the use of this Act to try to quell a crime wave. The Act does not allow for much room for judicial review, but the use of the Act to deal with rising crime could present some novel issues for a court. Nevertheless, the language of the Act favors the President.
There are other possible challenges that are more conventional. Once again, I have great concern over the allegations of citizens being picked up by federal authorities and held for hours before being released without charges. There are serious questions of due process raised in these allegations and their impact on protected free speech activities cannot be denied. There has been considerable violence in Portland from protesters but most are not violent. There should be an investigation into the conduct of the federal officers to confirm the basis for these arrests and how these individuals were treated while in federal custody. It is not per se unlawful to use unmarked cars for arrests. Indeed, it happens all the time. However, local officials and protesters are alleging that people have been effectively snatched off the streets and taken away blindfolded — only to be released hours later. The federal officials deny these allegations and insist that these were individual suspects taken into custody on specific alleged federal crimes. They also note that the officers were clearly marked as police and insist that they told the suspects who they were. Thus, we have a conflicted record. That is why we need an independent investigation.
I recently testified in Congress on the Lafayette protest controversy. I identified two primary areas of possible unlawful conduct (including a clearly unjustified attack on a media crew) and suggested a series of inquiries to confirm the facts. I also stated that I believed that the order to clear the park area to allow for the establishment of a new fence line was lawful and that the federal forces complied with the guidelines for three clear warnings to disperse. There also is now evidence that appears to refute the widespread claims that the plan was related to the Trump photo op in front of the church. The point is that many of the initial allegations (widely reported as fact) have not been established and indeed have now been contradicted. That does not mean that unlawful conduct by the federal forces did not occur. I told Congress that I expect the investigation ultimately to narrow to the charge of the police line rather than the plan or authority to clear the area. In reviewing the videotapes of the charging of the line of officers, I believe that it was unlikely unwarranted and unlawful in the use of force.
I expect we will find the same results in the Portland controversy. Like the D.C. protests, it is clearly untrue to portray the Portland protests are peaceful. There have been serious injuries to a large number of officers and considerable property damage, including arson. The police have a right to protect themselves and courts generally allow the use of nonlethal force in such circumstances. Yet, like most people, I was shocked by the image of an individual being hit in the head with a projectile from the courthouse across the street. Such excessive use of force can occur in any operation but it is important for us to determine if there is a pattern of such conduct. Any broad injunctive relief would require more than a few incidents. It would require a pattern of clearly excessive conduct.
I still believe that a massive deployment of troops would be a mistake. Under our system of federalism, state and local officials have the primary responsibility to address crime in the streets. There is ample reason to criticize the actions, or lack of action, from majors in Seattle, Portland, and Chicago. However, they are the elected officials given this authority by their voters. Moreover, marching into these cities with large federal forces would inflame the situation and would not likely impact actual crime through cities like Chicago.