The Volokh Conspiracy
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Federalism and Law and Order
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."