The federal government has broad power to enforce the laws of the United States, but not to monitor the streets or maintain order in a city if the protests lead to violence.
This is how the separation of powers between the states and the federal government has been understood. The Constitution leaves the “so-called police power” in the hands of state and local officials. It is one of the “powers not delegated to the United States” and, instead, is “reserved to the states,” as the Tenth Amendment says.
This principle has often been invoked by conservative Justices of the Supreme Court. In 1995, they reversed a federal law that made it a crime to have a weapon in a school zone because, as Chief Justice William H. Rehnquist said, it threatened to turn federal authority into a “general police force of the type retained by the States. ”
But President Trump says he is willing and even eager to break the line between federal authority and local police. Federal agents dressed in military gear repeatedly clashed with protesters outside the federal courthouse in Portland, Oregon.
And on Wednesday, Trump said he envisioned a broader campaign of order imposed by federal agents, sending them to the Chicago side. “We have just started this process and, frankly, we have no choice but to get involved,” said the president.
Legal experts agree that the President and the Department of Homeland Security have the legal authority to protect federal buildings and properties, even if state and local officials prefer that they have been kept away.
A provision of a 2002 law that created the Department of Homeland Security says that its secretary may “designate employees … as officials and agents for service in connection with the protection of property owned or occupied by the federal government.” . They may “carry firearms … conduct investigations on or off the property in question … and make arrests without a warrant for any crime against the United States” if they have “reasonable cause to believe that the person to be arrested has committed a serious crime “under federal law.
But legal experts also say federal agents in Portland appear to go beyond the authority to protect federal property.
“There are federal officials arresting people away from the federal building or federal property,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “That is not enforcing federal law. This is disrupting peaceful protests, and that would violate the 1st Amendment. There are also reports of arrests without probable cause, which violates the 4th Amendment. “
“This is another instance of Trump breaking the law,” said Paul Rosenzweig, a former National Security attorney now at the R Street Institute, who calls himself a free-market think tank. “Yes, if they see someone about to throw a Molotov cocktail, they can arrest him. If you see a group gathering to do something like that, you can investigate. But this power is limited. If they take someone off the street in a van and without probable cause, they could be sued for damages. ”
Acting Homeland Security Secretary Chad Wolf denied that officers are “patrolling the streets of Portland” or abusing their authority. He said they are fighting “violent anarchists” who launch attacks late at night after peaceful protesters have left.
A lawsuit filed Tuesday by a group of Oregon nonprofits and state representatives accuses Homeland Security of violating the Tenth Amendment and seeks an order from a judge that would limit federal agents to operate on federal properties.
Last week, Oregon Atty. General Ellen Rosenblum filed a lawsuit on behalf of several plaintiffs who say they were injured or arrested.
“We are asking the federal court to prevent the federal police from secretly detaining and forcibly seizing the Oregonians from our streets,” he said. “The federal administration has chosen Portland to use its scare tactics to prevent our residents from protesting against police brutality and supporting the Black Lives Matter movement.”
It’s unclear what legal authority the president could invoke to justify sending armed federal agents to Chicago, New York, or other major cities, particularly if it is “to help reduce violent crime,” as Trump suggested Wednesday, rather than respond to specific attacks on federal property.
One possibility is the Insurrection Act of 1807, which authorizes the president to “summon the militia or the armed forces” to “take whatever measures he deems necessary to suppress, in one state, any insurrection, domestic violence, illegal combination.”
President Eisenhower invoked the law in 1957 to send federal troops to Little Rock, Arkansas, to enforce desegregation of schools. In 1992, President George HW Bush used this authority to send troops to Los Angeles to quell the violence that followed the acquittal of several police officers in the beating of motorist Rodney King. Since then, Congress has expanded the law to authorize troops to deal with natural disasters and terrorism.
Generally, when city governors or officials face an outbreak of violence or disaster, they appreciate federal help. But the law seems to say that the president can act alone.
“Whenever the President considers that unlawful obstructions, combinations or assemblies, or rebellion against the authority of the United States make it impractical to enforce the laws of the United States in any state by the ordinary course of court proceedings , you can call the federal government militia service of any state, using the armed forces, as you consider necessary to enforce those laws, “he says.
To invoke the law, the president would have to proclaim an insurrection that requires the use of the military. In early June, Trump ran into strong objections from current and former military leaders who said they opposed the use of the armed forces for national law enforcement.
