Developments over the past week in Portland, and threats that more of the same may be coming to other American cities, is chilling news for anyone who cares about the constitutional rights of individual citizens and of American states to self-governance. Acting Secretary of Homeland Security Chad WolfChad WolfSunday shows preview: States deal with fallout of Ida; Texas abortion law takes effect Biden, Trump battle over who's to blame for Afghanistan The border is shifting from a manufactured crisis to a national embarrassment MORE said on Monday on Fox & Friends, “I don’t need invitations by state mayors [sic] or state governors to do our jobs” to send in agents from the Federal Protective Service, U.S. Customs and Border Patrol (CBP), and other federal agencies in the wake of Portland’s sporadically violent protests over the past seven weeks.
Wolf has done this in defiance of pleas from Portland Mayor Ted Wheeler and Oregon Gov. Kate Brown. The New York Times reported on Saturday that the federal agents sent to Portland were not trained in riot control or mass demonstrations, and Department of Homeland Security (DHS) professional staff had warned against their deployment in a domestic mission such as this. The state attorney general of Oregon has filed a lawsuit to challenge the tactics of federal agents who, wearing military fatigues and tactical gear, have been shown in photographs appearing to pull unarmed civilians into unmarked vehicles.
A New York Times story noted that the federal government does possess the authority to protect federal property in American cities and states. The danger is that DHS appears to have taken a very narrow authority to protect, say, a federal courthouse against violence, as a roving warrant, without perimeter constraints, to deploy its agents throughout American cities.
But it may not stop there. DHS Acting Deputy Secretary Ken Cuccinelli said Monday that DHS would advance law enforcement agents into other American cities if he believes the intelligence warrants it; on Friday, the head of Chicago’s police union asked for federal intervention in that city, and a reported 350 federal agents will be deployed to Chicago.
There are 9,000 federal sites in cities and states around the nation. Bootstrapping a narrow enforcement authority to protect federal property is alarmingly reminiscent of deploying a federal occupation force. It threatens the First Amendment right of peaceful protesters, and by diverting local law enforcement from missions that their own government superiors prioritize, it appears to commandeer state resources.
It is an invitation to due process violations. Agents of CBP at the southern border, for example, are not guided by Fourth Amendment search-and-seizure and probable cause rules that govern local police departments. Standards applied to searches and apprehensions at the border are, for better or worse, more flexible. Applying the same standards in American cities is one reason these forces are ill-suited to the current situation.
It also is a massive incursion on Tenth Amendment norms, which reserve police powers to the states. That is not an absolute bar to federal boots on the ground: Federalized National Guard troops are deployed around the nation right now in the battle against COVID-19, and federal agencies are on the ground after natural disasters, too, when the emergency is determined to be “beyond the capacity” of state or local governments to address.
The comity between federal, state and local law enforcement is well established. In every public safety emergency dating to the civil rights era, federal agents have not intervened except in consultation with state and local governments. During Hurricane Katrina, one of the harshest criticisms of the Bush administration was that it insisted on coordination with Louisiana Gov. Kathleen BlancoKathleen BlancoFederal presence in Portland raises alarm over takeover of states Governors get reelection boost from COVID-19 responses 2019 Louisiana governor's race spells disaster for Trump in 2020 MORE, a Democrat, before federalizing the National Guard, so strong was the cooperation norm.
We have seen what happens when there are no federalism protections for a local government: Washington, D.C., with only limited home rule, was the site of a federal law enforcement incursion into its city streets in June to safeguard a presidential photo op following the slaying of George Floyd by Minneapolis police officers. Federal assets were deployed in Lafayette Square, at the White House perimeter, and federal agency helicopters buzzed peaceful civilians in Chinatown, many blocks from critical federal facilities. Last month, we tried to rationalize these actions as specific to D.C. because it is a federal enclave, with unique exigencies as the seat of central government. We asked whether Trump would invoke the Insurrection Act, a rarely used law that authorizes deployment of federal troops to quell a rebellion. This month’s actions show that we were too generous to those calling the shots: They are not providing any legal justification for their actions.
Nor do there appear to be any rules of engagement for the federal presence. Federal agents are not serving warrants at home on people they appear to be picking up blocks from the incidents that precipitate the federal intervention, as is the standard practice for federal arrests where a perpetrator is not caught while engaged in actual acts of violence. DHS has not told Oregonians, or the rest of us, how long its agents plan to hang around in Portland. A presidential election is coming up in the fall. The continued presence of federal agents in American cities operating to pick up alleged “radicals” opens up frightening possibilities for voter intimidation.
Fortunately, there is still time to seek adjudication of how far DHS authorities go in federal courts before the November elections. Congress should stand up, too; Republicans who stand for the power of state autonomy need to remember that precedents set today will be remembered next year and in the future.
Meryl J. Chertoff is the executive director of Georgetown Project on State and Local Government Policy and Law and an adjunct professor of law at Georgetown Law. From 2009 to 2019 she was executive director of The Aspen Institute’s Justice and Society Program.