Police

Federalism and Law and Order

|The Volokh Conspiracy |

Yesterday President Trump announced that since his "first duty as President is to protect the American people," the administration was directing a federal response to end "the bloodshed" in American cities. As had been anticipated, he wants to roll-out nationally the wildly successful model of law enforcement that federal officers had demonstrated in Lafayette Park in Washington, D.C. and in Portland, Oregon. Undoubtedly, the repurposed agents from Customs and Border Protection will be welcomed as liberators when they arrive in Chicago and Kansas City.

The administration's particular actions are dubious under federal statutes, and they are misguided from the perspective of deescalating violence. The continued effort to send federal agents to carry out crowd control tasks for which they have not been trained has proven to be disastrous and dangerous. The apparent willingness of those agents to ignore routine procedural protections of the rights of American citizens is appalling.

Unfortunately, Trump's actions are but a ham-handed extension of the growth of federal involvement in domestic criminal justice that has occurred across the twentieth century. For decades, presidents and presidential candidates have exploited voters' fears about street crime to win elections and to justify federal intrusion into the constitutional authority of the states. The ratification of the Eighteenth Amendment in 1919 ushered in a new regime of federal law enforcement in order to suppress the manufacture, sale and consumption of alcohol. The infamous kidnapping of Charles Lindbergh's infant son in 1932 spurred the passage of the Federal Kidnapping Act and bolstered J. Edgar Hoover's FBI. Constitutional conservative Barry Goldwater latched on to "law and order" and rising crime as a potential wedge issue in 1964, and Richard Nixon perfected that strategy four years later. The war on drugs that rhetorically peaked in the 1980s was a boon to federal, as well as local, law enforcement. For decades, both Republicans and Democrats in national office claimed political credit while outbidding each other to show who could be toughest on crime. The result has been a federalization of the criminal law that feeds the growth of the federal government, intrudes into the governance of the states and localities, and often does little to improve public safety.

Trump's announced "surge" of federal forces into American cities is yet another dubious inversion of the American constitutional order. The federal government is one of enumerated powers. The provision of domestic criminal justice is not among those powers. The states were traditionally understood to have broad "police powers," which gives them the authority to take extraordinary actions to combat an epidemic but also gives them the authority to take routine actions to protect public safety from the violent and lawless. The Constitution vests the states, not the federal government, with the authority to do what the president announced and take measures "to restore public safety, protect our nation's children, and bring violent perpetrators to justice" and generally respond to "violent crime."

The federal government has a role to play in domestic law enforcement, but Trump's rhetoric and actions blow right past the constitutional boundaries on that role. The federal government has long been understood to have the means to take reasonable actions to protect its own property, personnel and policies. When the Constitution vests Congress with the power to coin money, Congress is naturally understood to have the power to punish counterfeiters of federal currency (though on that one the framers were explicit). When the Constitution vests Congress with the power to collect taxes, Congress is naturally understood to have the power to punish tax resisters. When the Constitution vests Congress with the power to establish post offices, Congress is naturally understood to have the power to punish those who would burn down the post offices or steal the mail.

There is no doubt the federal government can deploy force to protect federal courthouses from violent mobs when state officials are unwilling or unable to provide that protection. Since the federal government does not have regular law enforcement capacity, when the situation demands it the government uses what force it has at hand. When white mobs in Little Rock obstructed the enforcement of a federal court's desegregation orders and the Arkansas governor proved unwilling to take action against the mob, President Eisenhower sent in federal troops to enforce federal law despite "unlawful obstructions, combinations, or assemblages." One can reasonably debate whether it is good policy to send federal agents in riot gear out to disperse crowds in Portland, but the federal government has the narrow authority to take such steps and is not dependent on the good grace of a local mayor or governor to maintain its facilities. There is a reason why President Lincoln dared secessionists to fire on Fort Sumter; the federal authority to act in such a situation is clear.

But this administration is not content to stay within the narrow boundaries of its constitutional authority. Under the guise of "investigating" attacks on federal buildings, the Department of Homeland Security has sent roving agents out on city streets to round up suspicious persons with little cause. Leveraging state laws that authorize federal law enforcement officers to make arrests when they observe crimes under state law being committed, the Department of Homeland Security has attempted to position itself as a force multiplier for the local police. The announced surge for "Operation Legend" was characterized by Attorney General Barr as "classic crime fighting" to "solve murders and to take down the violent gangs," a supplement to the "tactical teams" acting against "riots and mob violence."

The recent spate of increased violence in cities like Chicago is a serious problem, but it is a state and local, not a federal, problem. Trump is not the first president to try to exploit local street crime to bolster his flagging political fortunes, and he will surely not be the last. But perhaps Trump's personal unpopularity will encourage us to reevaluate whether we really need to continue giving the federal government more and more authority over "classic crime fighting."

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  1. If state and local governments refuse to protect law-abiding citizens’ rights (protection of property and life), I think the federal government has a role, particularly when states and cities abdicate their responsibilities to uphold basic civil rights. It astounds me that the argument presented simply boils down to Orange Man Bad, ergo, people in Chicago or Portland will just have to deal with everyday violence and death.

    1. I would like to make this a general memo to all concerned, not just the author of the post that I am responding to.

      The use of the phrase “Orange Man Bad” to describe the opinion of anyone other than oneself does absolutely not project the air of political sophistication and probity that you apparently think it does.

      Quite the opposite. You tag yourself as a right wing partisan dumbass that is too incapable or lazy to engage the facts and opinions of whomever you think you are arguing with. I admit you at least are doing the rest of us a service in that regard by labeling yourself in a category that can be dismissed.

      Thank you very much. No need to pay me.

      1. >no refutation of core argument
        >relies on tone policing
        >see https://en.wikipedia.org/wiki/Tone_policing
        Soros Law grad spotted. Very poor argument. Come back when you’ve graduated from an accredited law school.

        1. [DING!!!]

          You just said the one thing that makes it even less likely that anyone will take you seriously than “Orange Man Bad”. “Soros” is the twofer of being uncritically Trumpist and antisemitic at the same time.

          1. How is referencing Soros by definition antisemitic? You’re continuing to tone police, and you sound like an idiot. Still no refutation of OP’s core point. Pathetic.

            1. A reference to Soros that describes something objectively factual is not anti-semitic.

              A reference to Soros as an inherently inimical agent of subversion and evil that stands against everything moral and decent while being detached from any identifiable act in reality is anti-semitic. “Soros Law.” He is a bogeyman to right wing nut jobs everywhere who believe he controls all elements of the government in secret. And they pretend that the fact that he is a prominent Jew has nothing to do with it.

              https://www.youtube.com/watch?v=OFy_X6IVmkc

              1. “A reference to Soros as an inherently inimical agent of subversion and evil that stands against everything moral and decent while being detached from any identifiable act in reality is anti-Semitic.” I disagree completely. I think Soros is indeed an inimical agent of subversion and evil and that he stands against most things that are moral and decent. That has nothing to do with the fact that he had a Jewish mother, thus making him a Jew, even though, it is my understanding, does not practice Judaism and does not believe in God. Second, even if I said something about Soros that was factually inaccurate, that would not make my remark anti-Semitic.

                1. When you don’t realize the tropes are antisemetic.

          2. A. It is not Soros’s Jewishness that is the basis of criticism of him. It is his noxious political activity. We on the right would like that activity no better if it came from Billy Graham.

            B. It unbecomes the Left to bring up anti-Semitism.

            1. Koch bros. are a very similar thing but the other way.

            2. The shadowy international banker with an evil agenda who controls his minions like puppets…and just happens to be Jewish.

              Yeah, nothing about that’s antisemetic.

              1. Well, he IS a shadowy international banker. He does have evil plans and minions. And I guess he’s sort of Jewish, on one side of his family, and only as an ethnicity.

                What can I say? Sometimes redheads are actually going to have tempers, stereotypes are sometimes going to be true, if only by accident.

      2. I would like to make this a general memo to all concerned, not just the author of the post that I am responding to.

        The use of the phrase “right wing partisan dumbass” to describe the opinion of anyone other than oneself does absolutely not project the air of political sophistication and probity that you apparently think it does.

        Quite the opposite. Etc, Etc.

        Thank you very much. No need to pay me.

      3. My counter memo is Orange Man Bad it is just condensing their argument to its core and shows great logic. It shows the person saying is smart and logical because they know what the OMB person is saying. People should continue to use it.

        1. I assume, then, you’ll concede that all conservative anti-Obama arguments are just Black Man Bad.¹

          (¹Not to be confused with Prof. Blackman Bad.)

          1. Of course not. Because they don’t boil down to Black Man Bad. They boil down to actual logical arguments. Unlike Orange Man Bad arguments.

    2. The number of rock-ribbed rule of law small government folks suddenly finding contempt for the 10th Amendment is unsurprising, but still telling.

      Looks to me like it’s the Feds doing most of the basic civil rights violating.

      1. Looks to me like it’s the Feds doing most of the basic civil rights violating.

        Yes.

        And now we have “pro-active” arrests.

        No outcries from the usual suspects.

      2. Here’s a concept: If you don’t want your civil rights “violated”, don’t destroy federal property. Why is this difficult for Mr. Whittington?

        1. Don’t conflate rioters with protesters. Protesters didn’t destroy anything, and yet the crackdown targeted them.

          1. “Updated: July 22, 2020 – 10:13 AM
            MINNEAPOLIS — A man’s burned body was discovered Monday in the wreckage of a south Minneapolis pawn shop set ablaze during protests three days after the killing of George Floyd while in police custody.”

            1. Did I stutter? Don’t conflate rioters with protesters. Protesters didn’t destroy anything, and yet the crackdown targeted them.

              1. But, Sarcastro, you’re the one doing that here. People are violently rioting, committing vandalism, arson, assault, and you mindlessly insist on calling them ‘protesters’.

                1. This crackdown seems to be targeting protesters generally. Which you justify by saying all protesters are basically working with the rioters now.

                  1. Well, of course it’s going to look that way to you: You think vandalism is peaceful protest. You’re not going to wait on the outcome of a trial to conclude somebody arrested at a riot is innocent.

                    1. A small group of vandals does not turn a protest into a riot.

                      They let those they arrested free. That’s a clue they were innocent.

                    2. You think vandalism is peaceful protest.

                      Not remotely what he said.

              2. “Don’t conflate rioters with protesters.”

                The news article said “protests”. That is SOP for the media, ignore the riots by calling everything protests. Surprised they didn’t use the standard “peaceful” or “largely peaceful” in front of “protest”. I guess the dead guy stopped them.

                1. It’s during protests; do you disagree?

        2. “Here’s a concept: If you don’t want your civil rights “violated”, don’t destroy federal property. Why is this difficult for Mr. Whittington?”

          Absolutely correct.

          1. Do you also agree that if Trump didn’t want to be investigated, he shouldn’t have colluded with Russia?

      3. The number of pro big government numbskulls who have suddenly declared a love of federalism and also the Confederacy is unsurprising but telling.

        Looks to me like its the states and cities failing to protect basic civil rights and the feds are stepping in to do it.

        1. “I’m from the government, and I’m here to invade your city with secret police despite the express wishes of your citizens and their government, and tear gas your mayor and your mothers.”

          Small government conservatives: That sounds reasonable.

          1. ““I’m from the government, and I’m here to invade your city with secret police despite the express wishes of your citizens and their government, and tear gas your mayor and your mothers.”

            Not to nitpick but it is far from clear that Portland’s citizens are all unhappy about the federal agent’s presence. I’m well aware of the danger of relying on anecdotal evidence but I know several Portlander folks who are 1) not right wing and 2) wish the idiocy would stop. Plus one who was delighted when the mayor got gassed.

            1. And to inure against incorrect assumptions, I am completely opposed to stops by said agents absent particularized knowledge of individual guilt and/or a warrant.

        2. “The number of pro big government numbskulls”

          Are you referring to those who favor authoritarian immigration practices; statist womb management and government micromanagement of ladyparts clinics; tariffs and other forms of protectionism; the war on doobies; abusive policing and militarized police; torturers; massive military budgets; and government gay-bashing?

    3. There’s ample precedent of using the Insurrection Act when local governments failed/refused to act. The movie _Mississippi Burning_ details one such instance.

    4. I think this is the logic for Federal hate crime laws, which I assume you support?

  2. Everyone knows the federal agency best able to protect US citizens, and law and order, based on past experience, is the US Army.
    Nothing quite says peace and law and order like an airborne unit in combat gear.

    (search Little Rock Nine, Little Rock High School)

    1. Alas, the DoD pushed back the last time Trump tried to use them like this.

      DHS is more loyal like that, it seems.

      1. “DoD pushed back”

        Who elected the DoD?

        If a president has the authority and so the order is lawful, then DoD has no right to “push back”.

        1. After that first night, DoD said they weren’t sure the order to bring armed forces into DC to quell the protests was lawful under US law and policy.

          The White House did not push the issue.

  3. Fun fact, according to the Crime a Day guy there are more than 70 armed federal agencies authorized to make arrests.

    https://twitter.com/CrimeADay/status/1285380521573396485

  4. Have federal agents taken any enforcement action in Portland outside the nexus of protecting federal property?

    1. 1. This new operation DHS is rolling out doesn’t even bother with a federal nexus.

      2. The arrests-and-releases in Portland don’t appear to have had individualized suspicion regarding federal property crimes. Or any crime at all, really.

    2. According to social media, they are rounding up hundreds of people and sending them to death camps. Since social media appears to be sufficient evidence for TDS sufferers like Whittington, I don’t know why we need to bother checking anywhere else.

    3. Yes. Have they taken any enforcement action inside the nexus of protecting federal property?

  5. The time for the Left to cry about this was when Clinton & Obama did it — now it’s too late.

      1. Also, why would it be too late to fix?

  6. I will not defend the Trump administration on this. Federal law enforcement should be generally abolished along with federal law.

    If a State requests federal help and reaches an agreement for it, that is different.

  7. This post is on the mark and over the target. Encouraging federal intervention in local situations, when it is not expressly requested or occasioned by violation of federal court orders and property, is tantamount to giving up any and all local control. Eventually, we would all be assimilated by the Borg.

    So much for the so-called ballot box when local policy and its ramifications get fixed, and often badly, by Daddy government. So much for local political means and law enforcement when conflicts get “righted” and exacerbated by unwelcome intruding federal forces. So much for local political and social culture, when destructive extremism gets a ride due to the antipathy federal imperialism and heavy-handedness engender. So much for any measure of liberty or autonomy for any of us anywhere when the federal government can declare exigency or emergency whenever and wherever it decrees.

    When an important federal court order was being violated in the segregationalist, violent South, federal marshals were sent in first and then local/ state law enforcement federalized to intervene in a lawless situation. That’s a good thing. Most reports have the Mayor and Governor requesting Eisenhower’s federal assistance, so even better, but had they not, a seminal federal court order was not being honored as the law, and lives were on the line.

    Who here would cheer on a Bush and Trump or Clinton and Obama intervention into their city for internal conflict not related to serious violation of federal law? Who here would, on principle, accept the “helpful” interference according to whosever Administration’s political agenda and priorities and would accept their take on justice, the law, and enforcement in service to those agendas?

    The federal agents in Portland should have made their mission and methods to only protect federal property and officials clear, but this did not happen, because their intervention was about doing more and about national political optics, both of which have turned out badly.

  8. Once the feds start going out and trying to police the city rather than protect federal property like they’re doing right now this article might have a point.

    1. Yes, but there was no clear announcement as to intention, scope of operations, and methods and no official agreement with local government as to federal intervention and parameters. Now there is a chaotic situation and ongoing backlash. At best, the murky federal efforts are hampered and, at worst, self-defeating.

      1. At the press conference, which I watched, Barr (whether you believe him or not) made it clear that it was going to be akin to the normal kind of surge anti-gang and anti-drug trafficking type of enforcement that was routine during the war on drugs that Obama scaled back.

        Now, you may be against the War on Drugs, or think Obama is did the right thing, but it’s not COINTELPRO part II that Trump/Barr are going for here.

        1. Um, Barr’s description of “akin to anti-gang and drug” type of enforcement is pretty unclear with regard to Portland’s particular situation, but certainly invokes nearly unconstitutional but now legal extra-judicial actions on the part of LE and the courts.

          I’m not for or agin the War on Drugs or War on Terror or for any of the other lucrative and bloody war enterprises promulgated by Obama, Clinton, Bush, or Trump. I’m for our individual liberties and against tyranny made manifest by propaganda and deception and the profiteering thereby. We should not let ourselves be beguiled.

          1. Those were not Barr’s exact words. That’s my paraphrase. I looked up the transcript (below). You may think it’s bad policy, but the feds have been at it for awhile now, and it’s not unconstitutional.

            Barr: In 1992, violent crime was nationwide, was double what it is today, and it was at that time that federal law enforcement first turned its attention to this kind of violent crime. Before that, the federal government really didn’t play that much of a role in it, but we started to attack violent crime in conjunction with state and local government. It was at that time for example that the FBI set up its anti-gang task forces throughout the United States and we started using our strong federal laws that permit us to target those who use guns to kill others and those that are involved in gang activity. Our approach was to set up anti violent crime task forces in the cities to enforce federal law and take the shooters and the chronic violent criminals off the streets. We helped pay for state and local officers to join these task forces so we could leverage our strength and this approach was extremely successful in the intervening decades in driving crime down.

            1. Per Barr’s words:

              Consider how “violent crime” is being defined by both parties.   Violence and crime are now political phenomena.

              Also, consider how his statement rationalizing federal intervention included:  

              “…we [the Feds] started to attack violent crime in conjunction with state and local government”– (not currently conjointly in the case of Portland protests and riots, apparently.)

              “… this approach was extremely successful in the intervening decades in driving crime down.”  Really, stats may say otherwise and so why the current “emergency” interventions into Portland, Chicago and elsewhere?

               “…target those who use guns to kill others”-  how is this not an obvious gun control argument that doesn’t even reference personal defence?  How is this not an endorsement of the federal monopoly of force?

              “…the FBI set up its anti-gang task forces throughout the United States and we started using our strong federal laws that permit us to target those who use guns to kill others”-  gangs and shootings are in every city.  Is this how they’re characterizing the Portland situation and why they rationalize their now “strong” authority to come after whomever, Portland and Chicago, after allowing, over the years, major cities to be so gang and violence infested?

              “We helped pay for state and local officers to join these task forces so we could leverage our strength…”-  Locals are owned.  

  9. Okay, I declare a compromise. How about the feds stay out of local law enforcement, but the feds also have to stay out of housing policy and local control over zoning, etc.

    1. Mad_kulak, since you’re trying to frame a workable policy, could you help with this quick list?

      Localities can and often should refuse federal monies and the strings attached, else they’re pwned.

      Federal court orders re principles and particulars of housing and zoning, etc. do matter, no matter how principled, misguided or political, but localities should have leeway in their interpretation, until the next court decision.

      Federal property, business, and officials do matter in terms of warranting intervention. So does local autonomy, absent accepting those federally attached strings of condition and violation of federal law and property.

      All transactions between local, state, and federal government should be transparent to constituents.

      Or, in our dreams?

      1. Greenparker…All those sound fine to me. This is not my area of expertise though.

        I am only trying to point out that the left likes it when the Feds engage in pressuring locals to include future slums, ahem, I mean affordable housing, in their zoning regs in order to get federal sugar.

        So, on one hand the heavy hand of the feds is okay in some instances, but not in others, depending on what’s at issue I suppose and what party you support.

        1. Those federally encouraged and funded high-rise inner city slums were a blight on us all, since so many of us fell for the urban renewal hell policy. No doubt the progressive urban renewal movement was lucrative for certain developers, local officials, architect and city planner creeps, and racist, hater eugenicists. Along the way they broke up intact working and middle class neighborhoods of all races and ethnicities for LBJ’s War on Poverty.

          Impoverishing the soul is what it’s all about. Gee, why don’t you bring up something I have an opinion about 🙂

  10. “Affordable housing”, today, is the iron wedge tool to break us all apart. The term sounds lofty to many, while politically and financially lucrative to others, but it nearly always entails breaking up more naturally intact neighborhoods wrt to property and social values.

    As in the case of the 60s and 70s urban renewal movement mentioned above, it was about reclaiming poor inner city neighborhoods by razing them for progressive concrete and steel mid/high rise multi-family units, ostensibly to alleviate poverty. But they really were about a multi-generational land grab. Cities and developers made big money on the displacement and relocation of citizens to the “housing renewal” projects when their home property could be bought for cheap, and later when most of the modern en masse housing projects were torn down and developed by commercial interests.

    Today’s invocation of affordable housing is about breaking up intact neighborhoods. There is no easy answer, only suspicion.

    1. I read Jane Jacobs and the Death and Life of Cities years ago, and came off disliking urban renewal projects, but I do also realize that zoning does have downsides in that those who already have a piece of land make housing unaffordable for others in that they limit the housing stock. Better to have “natural” slums I think, though, than the Robert Taylor homes (or equivalent), as you say.

  11. “a ham-handed extension of the growth of federal involvement in domestic criminal justice that has occurred across the twentieth century.”

    “Has occurred”? Is the 20th century not over yet?

  12. Have the feds stand down and let the protesters/rioters, whoever, torch the federal courthouse. Then everyone can go home. Problem solved

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