Question

How are the federal government’s actions during the recent protests in Portland Oregon related to issues of federalism? In your opinion, was the Trump administration justified in deploying federal law enforcement officers in Portland? Briefly, explain why or why not.

Answer 1

Does President Trump have the legal authority to deploy federal law enforcement officers to Portland, Ore., Seattle and other cities? Senior administration officials have repeatedly insisted that the agents are there to protect federal properties from violent protesters. Critics counter that the president has sent secret police to intimidate political adversaries or to put on a show for his reelection campaign. Underlying this debate are long-standing questions about the federal government’s proper role in state and local affairs.

Here’s what you need to know to make sense of the president’s deployment of federal law enforcement to Portland and beyond.

The Constitution constrains federal power over the states

“Federalism” may be the most important principle in U.S. constitutionalism. It’s generally understood as the division of power between the centralized federal government in Washington and the governments of the 50 states. “Federalism was our Nation’s own discovery,” Justice Anthony M. Kennedy wrote in a 1995 concurring opinion. “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state, and one federal, each protected from incursion by the other.”

Unlike most other national governments, the U.S. government lacks a general “police power.” Outside of federal territories such as Washington, D.C., and federal property like your neighborhood post office, Congress can’t make something a crime just because it wants to, and the president can’t deploy federal law enforcement officers or the military whenever he chooses. Instead, the government can carry out only the powers specifically enumerated in the Constitution, and the president can execute only the laws Congress passes to put those powers into effect.

But federal power can trump state and local authorities

Still, when the federal government is acting within its constitutional authority, it can override local and state authority, even when local and state officials object. Thus, President Dwight D. Eisenhower lawfully sent the Army into Little Rock to desegregate its schools — over the objections of Arkansas Gov. Orval Faubus — because the Constitution gives Congress the power to use the military to “execute the laws of the Union.” What’s more, Congress, in the Insurrection Act, authorized the president to call out the military to enforce federal law when local authorities are unable or unwilling to do so.

More generally, valid federal laws preempt conflicting state ones in all cases, not just when there’s an especially good reason. As Justice Robert Jackson put it in 1954: “We cannot resolve conflicts of authority [between states and the federal government] by our judgment as to the wisdom or need of either conflicting policy. The compact between the states creating the Federal Government resolves them as a matter of supremacy.”

Federal and state authorities have collided in Portland

The federal government may unquestionably use federal law enforcement officers to protect federal buildings like the three U.S. courthouses the Trump administration says it’s defending in Portland. It may also use such officers to arrest those who commit federal crimes, like assaulting a U.S. Marshals Service deputy, so long as those arrests are authorized by either a warrant or “probable cause.” And in a statute signed into law after the Sept. 11, 2001, attacks, Congress specifically authorized the new Department of Homeland Security to use any of its law enforcement officers for those purposes. That’s why it’s legal for Customs and Border Protection (CBP) officers to protect federal property in Portland, hundreds of miles away from any land border.

But federal law enforcement officers don’t generally have the power to arrest individuals for violating state law. Nor does any statute authorize federal officers to engage in general riot control or to respond, as a general matter, to “violent crime,” which Trump invoked Wednesday as the justification for sending additional federal officers to Chicago. As Chief Justice William Rehnquist explained for the Supreme Court in 2000, “We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.”

So are the federal deployments legal? It depends.

The devil is in the details.

If the federal government is providing additional manpower to protect federal property and arrest those who have committed federal crimes, then it’s on solid legal footing. But if it’s deploying large numbers of federal officers away from federal property in circumstances where there is no evidence of federal crimes — even if local or state offenses are widespread — then these deployments might very well be unlawful. Congress might have the constitutional authority to authorize these actions, but the critical point here is that, for better or worse, it hasn’t done so.

The deployments raise constitutional and other red flags

Even if the deployments are lawful, specific actions by these federal officers might still be unconstitutional. As Harvard law professor Andrew Crespo has painstakingly documented, at least one high-profile example from Portland of an arrest (captured on video) clearly violated the Fourth Amendment, which forbids law enforcement officers from arresting individuals without probable cause.

Is Trump hurting the military?

Historically, restoring order after large-scale violence in U.S. cities has been the military’s purview, whether through a state’s National Guard or regular federal troops. Congress has authorized the president to use the military for exactly that purpose since 1792, and at least some military units are specifically trained for such a role. Thus, Minnesota Gov. Tim Walz (D) used the state’s National Guard to restore order in Minneapolis at the end of May. If a governor were to refuse a president’s request to activate a state’s National Guard, the president would clearly have the authority to federalize them or use regular active-duty service members.

Of course, the U.S. secretary of defense, backed by a chorus of retired military brass, recently made clear that the military should not ordinarily be deployed against civilian protesters. But if the purpose of the deployment is the restoration of order, then that’s a political objection, not a legal one. Only Trump and his advisers know why the president has chosen instead to deploy federal agents, provoking substantial statutory and constitutional objections. Those will only increase if more agents are deployed to more U.S. cities to do what appears to be local law enforcement’s job.