The President, The States and Policing American Cities

By Michael Diederich, Jr.

President Trump

The President, The States and Policing American Cities

by Michael Diederich, Jr.[1]

President Donald Trump is reportedly planning to send federal agents to New York City to “help out” with the uptick in crime and protests.[2] He claims local officials have lost control of the streets. NYSBA President Scott M. Karson asked for the opinion of the Committee on Civil Rights (CCR) as to whether President Trump has the constitutional authority to involve federal personnel in the policing of American cities. This article explores the subject.

In declaring the independence from the British Crown on July 4, 1776, our thirteen original states were formed in a political revolution. This is our heritage. The roots of our democracy are grounded in the Declaration of Independence. The Founders pledged their “lives, [their] fortunes and [their] sacred honor” for the purpose of securing Americans’ “unalienable rights,” including “life, liberty and the pursuit of happiness.”

The Founders did not specify any particular system of government, for example, capitalist, communist, liberal or conservative. What the signers of the Declaration agreed upon was that a people can revolt when the rule of an overlord (in this case, the British Crown) becomes insufferable. They enumerated their grievances against King George:

  • He has erected a multitude of new offices, and sent hither swarms of officers to harrass our people.
  • He has kept among us, in times of peace, standing armies without the consent of our legislatures.
  • He has affected to render the military independent of and superior to the civil power.
  • For depriving us in many cases, of the benefits of trial by jury.
  • He has excited domestic insurrections amongst us.
  • In every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury. A prince whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Today, many Americans in cities such as Portland, Oregon and New York, N.Y., worry that President Trump’s views about federal “policing” are leading us down the road to authoritarianism—toward central government oppression that the Founders rebelled against.

In 1776, the Founders had not yet devised the structure of government necessary to prevent insufferable grievances and to secure the people’s unalienable rights.  This was accomplished with the ratification of the Constitution of the United States in 1788, and the subsequent ratification of the Bill of Rights in 1791. Our Constitution, with its Bill of Rights, reflects the genius and ingenuity of the Founders, by separating powers within the branches of the federal government, and dividing power between the federal and state sovereigns.

Regarding states’ rights and federalism, the Tenth Amendment to the Constitution is the most cited source of authority. However, as further discussed below, the source of constitutional law that is most applicable to the deployment of federal personnel to fight local crime and violence is the Guarantee Clause of the Constitution.

In response to NYSBA President Karson’s inquiry regarding the legal constraints on the use of federal police forces in American cities, the CCR opined that the federal government’s deployment of federal law enforcement into cities such as Portland, Ore., for the purpose of quelling local violence unrelated to an obviously legitimate right to protect federal property and personnel is likely unconstitutional in four respects.

First, the federal government’s actions undermine the United States’ federal system of government. A bedrock principle of our federal system is that the national government possesses only the limited power granted to it by the Constitution. As stated in the Tenth Amendment, all other powers are reserved to the states, or the people. Traditional police powers have long been viewed residing exclusively within the province of state government. The U.S. Supreme Court has made clear that general crime prevention is a state government function, and outside the federal domain. See, e.g., United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549, 567 (1995) (holding that the states, and not the federal government, retain a “general police power”).

Of course, the Supremacy Clause ensures that federal law is not ignored by state government. Thus, to enforce the federal guarantee of the equal protection of the law, President Eisenhower sent federal troops to Little Rock, Arkansas in 1957 and President Kennedy sent troops to the University of Mississippi in 1962 under the authority of 10 U.S.C. § § 332, 333 and 334. This exercise of federal power was to enforce federal law to secure African Americans’ civil rights. Cf., Morrison, 529 U.S. at 618 (“The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the states.”). It was not to uphold the state’s criminal law.

Under the principle of federalism, the federal government certainly has the right to protect a federal courthouse and federal personnel to enforce federal law, and to prosecute persons who violate federal law. However, federal officials do not have the power to use this authority as a pretext for undermining the rights the Tenth Amendment reserves to the states and to the people, particularly where the people’s rights being intruded upon are the citizenry’s rights to peacefully assemble, express views and petition government for redress—rights that federal officials are sworn to uphold, not trammel. Respecting federalism promotes democracy, because in our federal system it is state officials who have political accountability for the enforcement of the general criminal law, not federal officials.

Second, as reported by the press, the warrantless seizures of peaceful protesters in Portland by unidentified federal law enforcement personnel using unmarked cars is what one would expect from totalitarian government, not American government. The Fourth Amendment prohibits unreasonable searches and seizures, including the warrantless detention of individuals.  The Fifth and Fourteenth Amendments prohibit federal officers from depriving people of life, liberty, or property without due process of law, and guarantees citizens the equal protection of the law. In her lawsuit against the federal government, the Oregon Attorney General alleges that the federal government has been violating basic Constitutional rights, including detaining or arresting local residents far from the federal courthouse without any legal basis. Besides being an illegitimate exercise of police power, the federal efforts appear militarized, with unidentifiable personnel in tactical military garb grabbing ordinary citizens off the streets with an us versus them mentality. People have the right to expect that they can hold government responsible for its personnel. Transparency and accountability, not secrecy, is how government obtains the trust of the governed.

Third, the federal government appears to be targeting protesters in states and cities that President Trump has labeled “Democratic.” If politics is being used by federal authorities to target one city’s “liberal” protesters but not another city’s “conservative” protesters, such would violate the First Amendment as selective enforcement based upon the content of the speech. Of course, the federal government has no business targeting peaceful protestors regardless of the content of the message. The federal government’s actions have already had a chilling effect. Indeed, various organizations, including Black Lives Matter Chicago, have filed suit in the Northern District of Illinois seeking a declaration that the federal government’s words and actions infringe upon their First Amendment rights. See, Black Lives Matter Chicago, et al. v. Wolf, et al., Case No. 20-cv-4319, Dkt. No. 1 (N.D. Ill. July 23, 2020).

Finally, the Guarantee Clause of the Constitution (Art. IV, § 4) expressly provides for protection of the citizenry against “domestic violence,” but only if there is a request for help by the affected state. Specifically, the Guarantee Clause provides that the federal government shall act upon “application of the [state] Legislature, or of the executive [governor] (when the Legislature cannot be convened).”

The Guarantee Clause has seldom been litigated. The Supreme Court has determined that its guarantee of a “republican form of government” is a political question, and thus not judiciable. See, Luther v. Borden, 48 U.S. (7 How.) 1 (1849). However, the Guarantee Clause’s provision dealing with domestic violence has not been litigated at all, and importantly, does not involve any political question.  Rather, the provision unequivocally (if implicitly) recognizes that it is state government that handles domestic violence, with federal power limited by the requirement of a state request. The Founders discussed the option of providing for mutual aid in the event of “rebellion, etc.”  See e.g., Ryan C. Williams, The “Guarantee” Clause, 132 Harv. L. Rev. 602, 649-50, n.289 (2018).  The “republican form of government” provision of the Guarantee Clause is thus different from the “insurrection” (domestic violence) provision, where the latter requires the state’s request for help from the federal government. Id., at 676, n. 461 & accompanying text.[3]

Thus, the Guarantee Clause clearly denies President Trump the authority to seek to quell “domestic violence” absent the state’s request for such help. The principle behind both the Guarantee Clause and the Tenth Amendment is that the federal government shall not intrude into state governance in state matters. If Illinois, for example, requests federal help in combatting gun violence in Chicago, this would be perfectly permissible under both constitutional provisions.

On the other hand, a state attorney general, governor or legislature would presumably have standing to assert the state’s sovereignty against unwanted federal intervention. Not long ago, the Sixth Circuit suggested that the federal courts might revisit when a Guarantee Clause issue might be justiciable in an appropriate case. See, Kidwell v City of Union, 462 F3d 620, 636 (6th Cir 2006).

In matters of law enforcement, cooperation and comity between the federal and state sovereignties have been the norm. Yet President Trump has threatened to unilaterally bring armed federal personnel to New York State (and other states) on the purported grounds of quelling domestic violence. There is no need for this, especially in New York. More importantly, under the express terms of the Guarantee Clause, the federal executive has no authority to do so, absent a state’s request for federal help.

(Michael Diederich, Jr. is a solo practitioner who represents individuals in civil rights and employment law matters. He is a retired U.S. Army “JAG” lawyer and a member of NYSBA’s Committee on Civil Rights. He served on active duty in Iraq and Afghanistan. His office is in Rockland County, NY.)

[1] The author wishes to acknowledge Hanna Madbak, Esq., Amir Badat, Esq. and Hubert G. Plummer, Esq. for their assistance.  The opinions expressed herein are the author’s alone.

[2] See, Dave Goldiner, Trump warns federal agents coming to New York City to ‘help out’ with uptick in crime — City Hall says ‘no indication’ that’s happening, NY Daily News, July 25, 2020, available at https://www.nydailynews.com/news/politics/ny-trump-federal-agents-new-york-city-20200725-vqkyzmghjbcjvkgwb764x6re6i-story.html .

[3] It is the Congress, not the President, who can call forth the militia to suppress an insurrection.  See, Art. I, § 8, cl. 15.

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