Sunday, July 26, 2020

Send In the Troops -- Trump Invades American Cities



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.

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



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