Don’t want federal agents? Protect property

I recently visited Portland, Oregon, and saw the destruction around the federal courthouse there – walls defaced with graffiti, fences vandalized, and the remains of garbage fires that had been set.

The vast majority of antiracism protests over the past two months in the city have reportedly been peaceful, and the damage was due to a small minority of rioters who fought police and federal agents around the building.

President Donald Trump sent in federal agents, claiming Portland was no longer able to maintain order and adequately protect federal property.

The city’s mayor and Oregon’s governor repeatedly asked the agents to leave; the state attorney general sued to restrict the operations of federal agents. The federal presence, they said, violated the 10th Amendment, which guarantees a state’s sovereign right to police its citizens. A federal judge in Portland rejected the state’s arguments for lack of standing.

As a three-term mayor and city council member, as well as a legal scholar, I know that what’s called “home rule,” or local control, is the most sacred refrain in the vocabulary of every mayor and council member I know.

At the same time, the scene I witnessed at the federal courthouse in Portland is disturbing.

The Founders feared an authoritarian central government. While the concept of the municipality, and therefore home rule or local control, is not described in the United States Constitution, the 10th Amendment guarantees such local authority to the people through the states.

The concept of decentralized governance predates the 10th Amendment. Article II of the 1777 Articles of Confederation, the predecessor to the Constitution, grants each state “sovereignty, freedom and independence.” The 10th Amendment is the natural progression of Article II.

The constitution of each state is where “local control” is spelled out in detail, including police powers to help govern public health, safety and welfare. Since 1824, the U.S. Supreme Court has affirmed the right of states to exercise these police powers, including, in the current context, quarantine laws and health laws of every description.

Over the years, more conservative Supreme Court justices have specifically invoked the principle of reserving police powers to states. Justice William Rehnquist, in striking down a federal law which prohibited bringing a gun into a school zone, said that law threatened to convert federal authority into a “general police power of the sort retained by the states.”

How can the federal police intervention today in American cities be reconciled with the well-established jurisprudence on state sovereignty and the recognition of local police powers?

The conflict between central national power and local police power finds its roots in the Whiskey Rebellion of 1794.

Farmers in western Pennsylvania objected to an excise tax imposed on them as an abuse of federal authority. The protests became violent. When the home of the regional tax collector was burned, President George Washington had little choice but to stop the violence, which threatened the Union’s stability.

In 1807, President Thomas Jefferson signed into law the Insurrection Act. This act empowers the American president as commander in chief to deploy military troops within the U.S. in particular circumstances. It’s the same act that President Trump threatened to use in American cities.

Subsequent acts of Congress between 1860 and 2001 gave the president broader powers to decide the conditions justifying the use of state militia by the federal government.

Presidents subsequently used that power to enforce federal law inside states.

Previous presidents had a constitutional duty and authority to faithfully execute the laws of the United States, including sending federal officers to protect federal property and enforce federal law. What is the argument against President Trump doing the same?

The lesson here is for state and local officials to implement the law and protect federal property. Gov. Kate Brown of Oregon reportedly agreed to secure the Federal Courthouse in return for the departure of the federal agents.

President Kennedy, while sending federal troops to Birmingham, Alabama in 1963, said he hoped the citizens of Birmingham themselves would maintain “standards of responsible conduct that will make outside intervention unnecessary.”

The conduct of federal officials in protecting the civil rights of citizens in Portland under the First, Fourth and Fifth Amendments of the Constitution will remain under scrutiny.

But a president’s right to execute federal law and protect federal property will remain a strong exception to local control and local police power guaranteed by the 10th Amendment.