Trump has sent federal
“troops” into Portland reportedly under Acting Secretary of
Homeland Security Chad Wolf's approval. The troops were supposedly
sent to protect "monuments, memorials, and statues" in an
response to protests in Portland that have occasionally turned
violent.
The law enforcement units
in question have appeared in Army-style camouflage with no
identification other than a simple "Police" label on their
outfits. They have been reported to be three separate units of the
Customs and Border Patrol, an agency under the control of the
Department of Homeland Security.
One is the Border
Patrol Tactical Unit (BORTAC), a SWAT-team-style unit that is
normally tasked with fighting drug cartels. The other two units
involved are called Border Patrol Search, Trauma, and Rescue, and a
Special Response team.
(Jeff John Roberts.
“‘Trump troops’ in U.S. cities: What the law says about
their rights – and
yours.” Fortune. July 22, 2020.)
Jeff John Roberts of
Fortune reports …
“Skeptics, including
former FBI Director James Comey, say President Trump's real purpose
in deploying these federal agents is to gin up television images of
chaos and conflict—images that can support his claim that Americans
need to choose a "law and order" President in November's
election.
“Trump critics also
note that the recent incidents in Portland are akin to what the
President did in Lafayette Park in Washington, D.C., in early June.
On that occasion, Trump used federal agents—including riot control
officers from the Bureau of Prisons—to tear-gas peaceful protesters
in order to arrange a photo op.”
On July 23, Trump called
Portland Mayor Ted Wheeler “pathetic” after the Oregon politician
was gassed by federal “troops” while standing among protesters
outside a courthouse. Trump said during an interview with Fox News …
“He made a fool out
of himself. He wanted to be among the people, so he went into the
crowd and they knocked the hell out of him. That was the end of him.
So that was pretty pathetic.”
(Brian Niemietz. “Trump
mocks Portland mayor who was gassed by federal ‘troops': ‘they
knocked the hell out of him.'” New York Daily News. July 24,
2020.)
It is understood Trump can
invoke authority under the Insurrection Act of 1807, which allows
presidents to send troops when “any insurrection, domestic
violence, unlawful combination, or conspiracy” prevents enforcement
of state laws in a manner that deprives residents of that state of
their federal constitutional rights.
President Eisenhower did
this to desegregate the Little Rock public schools in 1958, as did
President George H.W. Bush during the 1992 riots in Los Angeles. But
the statute requires the president to issue a formal proclamation
before troops are dispatched. Trump has issued no such proclamation,
nor does he claim that his actions are an exercise of power under the
Insurrection Act.
Erwin Chemerinsky,
American legal scholar known for his studies of United States
constitutional law and federal civil procedure, reports …
“Moreover, the
predicate for invoking the Insurrection Act is not met; there is no
indication that the situation in Portland (or any of the other cities
Trump has earmarked for federal intervention) is preventing
enforcement of the law in a way that deprives individuals of their
constitutional rights.”
(Erwin Chemerinsky of
theOp-Ed: Trump’s troops in Portland are a constitutional outrage.
Los Angeles Times.
July 24, 2020.)
Federal law enforcement
personnel cannot be used to enforce state and local laws. It’s
basic to the Constitution — state and local governments have the
police power; federal officers are limited to enforcing federal law.
Kent Greenfield, Boston
College law professor specializing in constitutional law, says …
“The president is not
the king. The president does not have the ability to require states
to enforce their laws in a certain way, or to elbow aside their law
enforcement abilities.”
(Jonathan
Stempel. “Trump's legal authority to deploy agents to U.S. cities
may be limited, experts say.” Reuters. July 21, 2020.)
Greenfield distinguished
the current situation from 1957 Little Rock high school situation and
the 1962 actions of President John F. Kennedy, who sent federal
agents to help integrate the University of Mississippi.
“Those were cases
when a state was refusing to enforce federal law, or was hostile to
enforcing it,” he said. “You don’t have open rebellion.
Also, Chemerinsky cites
Constitutional law …
“The president cannot
authorize violations of the First and Fourth Amendments.
“In Portland, it
appears that individuals have been arrested who were engaged in
peaceful protests and not breaking any law. This upends the First
Amendment’s guarantee of free speech and freedom of assembly, as
does the use of tear gas and projectiles to disperse peaceful
protesters. And for the president to use federal law enforcement in a
blatantly political way — that earmarking of cities with “liberal
Democratic mayors” — also infringes core principles of the First
Amendment.
“As to the Fourth
Amendment, in news reports, protesters in Portland describe being put
into unmarked police cars by officers who did not identify
themselves, being detained in the federal building and then released.
These are arrests without probable cause, violations of the
amendment’s guarantees against unreasonable search and seizure.”
(Erwin Chemerinsky of
theOp-Ed: Trump’s troops in Portland are a constitutional outrage.
Los
Angeles Times. https://www.latimes.com/opinion/story/2020-07-24/donald-trump-portland-border-patrol-constitution.
July 24, 2020.)
Trump has said he might
deploy agents to New York, Chicago, Philadelphia, Detroit, Baltimore
and Oakland, California, cities controlled by “liberal Democrats.”
New York Mayor Bill de Blasio and Chicago Mayor Lori Lightfoot said
they would sue him if Trump followed through.
While the federal
government has a right to protect federal property and a 2002 law
details that federal officers can be deployed for "the
protection of property owned or occupied by the federal government,”
Trump's latest move is a separate operation focused on what he calls
“policing violent crime,” rather than protecting federal
property. The potential of deploying federal agents to patrol the
streets is extremely problematic.
And, what is more
disturbing is that Trump uses strong-arm tactics to beef up his
law-and-order base – a clearly political move. Using Border Patrol
troops to display misguided bravado, Trump, once again, shows he
doesn't understand policy and law. He glorifies a show of force with
little regard for the Constitution, state laws, and local laws.
“This
is the very thing that scared the heck out of the framers of the
Constitution. There’s been an over-tendency to cry wolf. Well, this
is wolf. This is it.”
– Barry
Friedman, a law professor at New York University,
speaking
of the situation
No comments:
Post a Comment