Federal troops for local law enforcement? That raises some difficult issues.
As conservatives, we believe in the rule of law. Lawlessness, rioting, looting, burning, threats and injuries to law enforcement officers have no place in our American system and must be suppressed.
But we also believe in states’ rights. The 10th Amendment enshrines this basic cornerstone of limited government:
The powers not delegated to the United States [federal government] by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Does the Constitution delegate to the federal government any power to send troops to American cities to suppress crime?
This was not an issue when President Trump deployed the National Guard to Washington, D.C., as the latter is federal territory subject to federal regulation. The president had full authority to issue an executive order on August 11, putting the federal government in charge of the D.C. police force, and he had full authority, pursuant to that order, to declare an emergency and send guardsmen into D.C. to restore order.
But sending troops into Chicago or Portland is another issue. What authority does the president have to do this?
Consider Article IV, Section 4:
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
Note that this doesn’t say “may protect;” it says “shall protect.” For protection against invasion, that’s mandatory. However, for protection against domestic violence, the federal government may act only upon application by the state legislature, or if the legislature cannot be convened, then upon application by the governor.
Consider also Article I, Section 8:
The Congress shall have power … To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrection and repel invasions.
Nothing in this clause requires the prior application of the state legislature or governor.
Pursuant to this clause, Congress has authorized the president to call up the Guard to repel invasions, if there is danger of rebellion, or if the president is unable to execute the laws of the United States with the regular forces.
Tennessee Gov. Bill Lee (R) requested Guard troops to restore order in Memphis. But Illinois Gov. JB Pritzker (D), California Gov. Gavin Newsom (D), and Oregon Gov. Tina Kotek (D) did not, and they have filed lawsuits to prevent Guard deployment to their states. Recently, Federal Judge Karin Immergut issued a temporary restraining order prohibiting the deployment of Guard troops to Portland. That order is expected to remain in effect at least until Oct. 19.
Before we pillory Immergut as a left-wing judicial activist, let’s remember that she is a Trump appointee and a Republican who worked on Ken Starr’s investigation of Bill Clinton. She issued this ruling only after conducting a hearing, taking testimony from both sides, and concluding that the Portland disturbances could be handled by state and local law enforcement and did not require federal intervention. Needless to say, the Trump administration plans to appeal, and over the past few months, the Supreme Court has frequently supported Trump by reversing lower court rulings.
Just because Immergut ruled against Trump doesn’t mean she’s wrong. But just because she is a Trump appointee doesn’t mean she’s right either. And just because she issued a temporary restraining order doesn’t mean her final order will be the same.
What should we watch for as events unfold?
There will be further pleadings and further hearings. Trump’s success before Immergut and other courts may depend upon the extent to which he can demonstrate that:
- The disruptions are not simply criminal and violent, but rather insurrections against local and state governments.
- The disruptions in the various states are planned, financed or coordinated by interstate forces. As George Mason warned at the Convention of 1787:
[I]f the general government should have no right to suppress rebellions against particular States, it will be in a bad situation indeed. As rebellions against itself originate in and against individual States, it must remain a passive spectator of its own subversion.
In other words, the federal government must be able to suppress local insurrections because otherwise they will lead to insurrections against the federal government.
- The disruptions are instigated, in whole or in part, by foreign entities. To the extent this can be demonstrated, they can be classified as invasions under Article I, Section 8 and Article IV, Section 4.
I am a strong Trump supporter, but I still hope federal involvement with law enforcement will be a narrow exception rather than the rule. Before we give Trump this power, we must ask: Would we want Biden, Obama or Clinton to exercise it? As I’ve warned many times, every constitutional power is a two-edged sword.
Even in blue havens like Portland and Chicago, there must be sane people who are revolted by this madness. I am so pleased to see black women with MAGA hats thanking God and Trump for making their streets safe. But that’s not the ultimate solution. They need to get involved in the political process, vote out the leftist loonies who reduced their communities to shambles, and elect people who will restore order and sanity.
That’s the American way!
Editor's note: The penultimate paragraph has been updated from the original for clarity of thought.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and Pastor of Woodland Presbyterian Church (woodlandpca.org) of Notasulga, AL. He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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