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You don’t have to be a legal expert to know that when unidentified federal forces wearing military fatigues snatch people off the streets into unmarked vans, it’s an abuse of power. Still, it’s worth spelling out what rules Trump is getting around and how. 1/14
From the moment he was elected president, Trump has been itching for an excuse to “send in the feds” to “take over” states or cities with Democratic leaders. The threats started even before inauguration. 2/14 https://www.washingtonpost.com/news/post-politics/wp/2017/01/24/trump-threatens-to-send-in-the-feds-to-address-chicago-carnage/
Of course, in this country, the president can’t just “take over” states and cities. Although Trump seems not to know it, the federal government’s powers under the Constitution are limited. So Trump and his Attorney General have been trying out legal loopholes. 3/14
When it comes to deploying the military domestically, the Posse Comitatus Act prohibits the participation of federal troops in law enforcement activities. The president could get around that by invoking the Insurrection Act… 4/14 https://www.bostonglobe.com/2020/06/02/opinion/yes-trump-can-deploy-troops-suppress-protests/
…but an Insurrection Act invocation would be extremely controversial. Indeed, the president’s own Secretary of Defense balked at using the Act during the protests in DC. So Attorney General Barr went looking for another option. 5/14
Barr landed on a provision of law requiring National Guard troops to participate in federally designed and funded training exercises. He cited this “training” provision as authority to send eleven states’ Guard units into DC against the wishes of DC’s mayor. 6/14
That blatant misuse of the law served the president’s purposes in DC. But even though Barr’s legal interpretation didn’t rest on DC’s unique legal status, it might be politically trickier to send one state’s National Guard units into another state. 7/14
So in Portland, the administration is trying out another tactic: using federal law enforcement units as a paramilitary force to “restore order” against state/local wishes. (Law enforcement has become so thoroughly militarized, it can play the part for practical purposes.) 8/14
Once again, it’s not supposed to work this way. Ensuring public safety – during protests or otherwise – is the quintessential state police power, which is reserved to the states under the Tenth Amendment to the U.S. Constitution. 9/14
States can request federal assistance, or pass laws authorizing the feds to enforce state law. Oregon has such a statute. But in this case (as @steve_vladeck explains), the administration hasn’t complied with its terms. 10/14 https://www.lawfareblog.com/what-heck-are-federal-law-enforcement-officers-doing-portland
Federal law enforcement officers can also act to protect federal property or enforce federal law without the states’ permission. That’s the justification that’s being cited in the carefully crafted statements from DHS. But Trump keeps going off script... 11/14
In repeated public statements, Trump has made it quite clear that he’s deploying federal law enforcement officials to do the job (as he sees it) of state police. The notion that the feds are there to protect federal property is pure pretext. 12/14
In fact, the federal agents in Portland seem more interested in breaking laws than enforcing them. They’re arresting people without probable cause (far from any federal property) and deliberately creating no records of the arrest so they can deny it ever happened. 13/14
In short, the use of a secret federal paramilitary force in Portland (and soon Chicago and likely other cities) is every bit the abuse of power that it appears to be. And it’s an abuse we can expect to see again in November if the administration isn’t called to account. 14/14
