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.