President Donald Trump's decision to dispatch federal agents to cities to put down violent protests and make arrests has drawn a wave of criticism.
Senate Democrats are proposing that the next coronavirus relief package contain limits on the president's efforts to send federal agents to patrol major cities. Lawsuits have targeted the Department of Homeland Security and other agencies by alleging that federal agents sent to Portland unlawfully detained demonstrators without probable cause.
On Tuesday, Attorney General William Barr defended the federal response to what he called the "violent rioters and anarchists" who "have hijacked legitimate protests to wreak senseless havoc and destruction."
Any efforts by federal agents to engage in general law enforcement activities in American states, without authority from Congress, potentially violates the Constitution. On the other hand, at some point, rioting and violence can escalate beyond local law enforcement's ability to handle it.
The framers, according to James Madison, "reserved to the … States" authority over "the internal order" and the "lives, liberties, and properties of the people." The federal government's authority was limited to such things as "external objects … war, peace … and foreign commerce."
Alexander Hamilton believed "the ordinary administration of criminal and civil justice" was primarily the "province of the State governments." The 10th Amendment, ratified during George Washington's tenure as president, expressly reserved to the states all powers not expressly delegated to the federal government.
One wonders what Washington and Hamilton would have thought of Trump and Barr sending federal agents into cities to put down civil unrest, especially where the states and cities have made it clear they don't want the federal help.
Actually, Washington and Hamilton would have approved. In fact, they did essentially the same thing.
The Whiskey Rebellion was a gradual uprising in rural western Pennsylvania in the early 1790s, when distillers and farmers protested a new federal whiskey tax — the first federal tax on a domestic product. In 1794, protesters surrounded the house of a tax collector, who shot into the crowd, killing one of the demonstrators and injuring others. Shortly after, some 7,000 citizens took up arms and threatened to march on Pittsburgh, taking on a system they perceived as oppressive.
Hamilton, then secretary of the Treasury, supported the use of force to put down the rebellion; Washington agreed with him. The governor and other Pennsylvania state officials met with Washington and told him federal intervention was unnecessary; state authorities could handle the riots. Washington then promptly ignored local officials, mobilized over 12,000 troops, sent them in and started making arrests.
There were differences between then and now, of course.
Washington's "troops" were local militia, not agents employed by an executive branch agency, riding in unmarked rental cars. Also, some whiskey protesters interfered with the tax collection process and physically attacked federal "agents" — tax collectors. That arguably took a local issue and made it a federal one. It does raise the question of whether the underlying motive of larger protests should even matter for federal jurisdiction purposes.
But generally, the power to police is reserved to the states by the 10th Amendment. Federal agents are not supposed to have the general arrest powers carried by local or state officers. Federal agents' arrest power is limited to their specific, articulated federal jurisdiction.
The FBI, for instance, cannot set up speed traps or DUI checkpoints. Their arrest power is limited to violations of federal law. It's why Trump could issue an executive order for federal law enforcement officials to arrest a specific class of people: those who damage a monument or statue — a crime falling under federal jurisdiction.
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And, other than the Reconstruction, Congress has never authorized the president to conduct general police activities in an American city. It's certainly not likely to do so now. If the president and the attorney general want to "send in the feds," they can only send them for a constitutional purpose: to enforce federal law or support local law enforcement.
Trump and Barr cannot dispatch federal agents to take over local law enforcement activities simply because they might think local police are doing a poor job. Federal criminal jurisdiction has expanded exponentially since the times of Hamilton and Washington, but it has not, and cannot, expand to take over the duties of local police. That is a constitutional line that the feds cannot cross.