President Trump never fails to find a way to do the right thing for the wrong reason and in the most ham-handed manner. The deployment of US Marshall’s and Homeland Security agents to Portland could have been justified simply by the need to protect the Mark Hatfield Federal Building, the judicial employees who work there, and those who need to do business there. If anyone interfered with those functions, the president had a duty to deploy the marshals to protect the facility and arrest violators. That’s what the US Marshals Service was established to do. See 28 USC Section 566.
If local authorities refused to assist and effectively condoned the attacks, the Insurrection Act provided a process to federalize the National Guard to protect federal authority. Specifically, it requires the president to first “by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time”. See 10 USC Section 254. In addition to being legally required, such a proclamation would have enabled him to build the public support for such an admittedly extraordinary action. If the attacks continued nevertheless, the situation would have been no different than when the South Carolina militia fired on Fort Sumter in 1861 or when George Wallace stood in the schoolhouse door to stop desegregation in Alabama. The President would have to act to protect federal authority and the Union.
Instead, the President has used other provisions under the act intended to provide equal protection under the law to protect not people, but monuments and statues and now to enforce local laws. As I mentioned in a previous post, the federal government should support a “surge” in metropolitan police forces to rebuild their effectiveness and legitimacy. However, it should have been accomplished through increased funding of local police departments subject to strict guidelines. Federal enforcement agencies do not have the manpower or the local support to enforce local laws.
The drastic actions in Portland and elsewhere could have been an opportunity to unify the nation in support of federally protected rights. Once again, the president squandered that chance. A federal judge in Portland is currently considering a suit by the state of Oregon to restrain the forces protecting the very building which she holds court. Our only hope is that the judge will deny the state’s motion with enough legal eloquence to start to create the national unity we so desperately need.
In this site’s mission statement, I said that as much as Theodore Roosevelt was a model, there would be times we would disagree with his likely approach to an issue. The Supreme Court’s recent opinion on the DACA immigration program highlights one of those differences – the wisdom of unchecked presidential power.
The Court’s opinion errs not just because it continues a program that flouts the basic rules of immigration law. The so-called Dreamers would have been granted permanent residency eventually. However, it should have occurred through the legislative process as part of a comprehensive immigration reform that created real and enforceable limits on future immigration. Instead, the Court used arcane administrative obstacles to allow the Obama Administration to evade the Congress and the people to achieve its political goals. In doing so, the Court has undermined the constitutional separation of powers and the democratic process.
The breadth and depth of the power granted by the Court to administrative agencies (and thus the presidency itself) can only be understood by delving into the details. The court admits that the DACA program (and the corresponding rule protecting the parents of DACA children) were affirmative rules subject to the Administrative Procedure Act. This law ordinarily would require such rules to be issued through a notice and public comment process and adopted only after “reasoned decisionmaking” (the Court’s language). They then could be appealed for judicial review by interested groups such as the Federation for American Immigration Reform, which advocates for immigration restrictions. Instead, the program was initiated by a three-page “memorandum” not posted for prior comment and justified on conclusory grounds that such immigrants “lacked the intent to violate the law”, are “productive contributors” and “know only this country as home”. No other justification or evidence was cited to support the memorandum. In addition, by acting through such a memorandum, the administration made it more difficult to challenge the program in the courts.
Thankfully, several states did challenge it and the Fifth Circuit Court of Appeals issued a preliminary ruling holding it to be an illegal rule making. After President Trump took office, Attorney General Jeff Sessions issued an opinion to the Department of Homeland Security holding it to be illegal. Based on these opinions, the acting Secretary of the Department of Homeland Security decided to rescind the program. That should have been the end of the matter. Instead, a new set of appeals were filed and the Supreme Court struck down the rescission and sent it back to the agency so it can consider at least 8 different objections by supporters of the rule. In short, the court ruled that an agency rule having a multi-billion dollar economic impact and granting new rights to over 20 million people could be adopted without public comment or congressional input on conclusory grounds, but could only be repealed by engaging in a detailed factual and legal analysis.
Justice Thomas’s dissent accurately describes the danger to our constitutional democracy, stating that an agency is now “not only permitted, but required, to continue administering unlawful programs that it inherited from a previous administration”. It grants agencies and the beneficiaries of their largesse more rights than the people as a whole. No wonder many refer to Washington as a swamp. Policies adopted through the democratic process go in, but become so mired in governmental and special interest muck that they never come out.
To his credit, President Trump has issued an executive order prohibiting this kind of rogue administrative action. At the same time, he encourages the same culture of presidential power by constantly acting through executive orders rather than by legislation. He has never seriously pursued a comprehensive administrative law reform in the Congress. Without this, a succeeding administration can undo his restraints by its own executive order. As we approach the 2020 election, American nationalists who believe in the unique value of our constitutional democracy should insist that candidates, including Trump, commit to reform that drains the administrative swamp once and for all and opens up policy making to the American people.
If the police power is used oppressively, or improperly, let us by all means put a stop to the practice and punish those responsible for it; but let us remember that a brute will be just as much of a brute whether he is inefficient or efficient. Either abolish the police, or keep them at the highest point of efficiency.
The Works of Theodore Roosevelt (1917.) Scribner’s Mem. Ed. XXI, pg.73; Nat. Ed. XIX, pg. 63
In the wake of the killing of George Floyd, this blunt observation of Theodore Roosevelt is particularly timely and provocative. As police commissioner of New York City, TR knew the difficulty of preserving the legitimacy of a police force in an ethnically diverse city. Police corruption, whether in the form of bribery or brutishness, sapped that legitimacy and needed to be swiftly and certainly punished. He also knew that such corruption often arose from systemic failures in society that were foisted on the average police officer to solve. Whether the slogan is Roosevelt’s or today’s “defund the police” chant, any sustainable police reform movement must address these past policy failures.
TheMilitarization of Police Departments
After the 9/11 attacks, the federal government decided that every metropolitan police department needed to be prepared to deal with a terrorist attack. This ended a successful era of neighborhood policing based on increasing the number of police officers walking a beat or otherwise regularly connecting with city residents. Instead, cities stocked up on military-style equipment, which had the effect of separating the police from the public and glorified the use of force over early intervention. Hollywood then further glorified it through television shows like “SWAT” and a host of police buddy movies. This resulted in a culture that ruled by fear instead of respect. It is past time to reverse course and reinvent the policeman as a community problem solver and give him or her the necessary support and resources. To do so, though, we must face another reality.
It is equally ironic that the relevant model may be the “surge” in military force that temporarily pacified Afghanistan and Iraq. The federal government should fund a similar surge in the number of city police over the next ten years subject to strict rules to insure it results in more and better-trained officers on the beat. Cities would then be expected to pick up the funding for this increase afterwards. Accepting the higher federal and local taxes necessary to achieve this more humane and sustainable form of policing would be the most concrete way to show our commitment to remedying past police abuse of poor minority communities. However, even this change will be insufficient if we neglect another crisis in law enforcement.
TheExpansion of Criminal Law
Roosevelt’s police force was plagued by bribery caused by the attempt to enforce Sunday blue laws that were deeply unpopular among poor immigrants and which he personally opposed. Today’s police officers are asked to not only keep order, but also enforce a myriad of new financial and economic rules. George Floyd was being arrested on suspicion of passing a counterfeit $20 bill, which is a federal, not local, crime. Eric Garner of New York died while being arrested for failing to pay the state cigarette tax. If the police become identified with laws that have little legitimacy in their communities, they will inevitably face resistance and a lack of cooperation in enforcing other laws. Many cities already refuse to assist in enforcing the federal immigration laws in order to encourage illegal immigrants to cooperate with police in preventing violent crime.
The accretion of federal, state and local criminal laws over the years has placed all of law enforcement in an increasingly untenable position. All levels of government should conduct a thorough review of their criminal codes with the goal of either repealing minor criminal statutes, converting them to civil violations or developing new enforcement methods. Local police could then return to enforcing laws that preserve neighborhoods rather than disrupt them.
For most of this year, our nation has been concentrating on breathing freely by avoiding the coronavirus. Both the yearning to reopen and the George Floyd protests show that breathing freely is not enough for Americans. We must also be able to breathe free. Resisting arrest is never excusable, but resistance will occur more frequently if Americans believe they are not free. Blaming the police without examining the policy failures that affect all of us regardless of color will only sow the seeds of more resistance and a less efficient police force.