Internal Control and the Federal Police

Scenes from Portland are frightening. This weekend I began to wonder just who these federal agents were because the feds were never meant to ever have a police force. The prohibition of a federal police was fundamental to the founding fathers (and mothers) view of the new version of federalism created by the US Constitution. We all are learning more as the media uncovers more. The “fourth estate” may be redeeming itself, imho, as journalists begin to unearth who these agents are in order to help us grapple with the legal legitimacy of the federal interference. Also, recent federal court decisions concerning the police and federal agents in Oregon create a one step back, two steps forward scenario. If the federal government has the legal right to enlist federal agents, then court decisions and new laws are permitted to check that power.         

 

THE COURTS

While a federal judge recently refused to grant the State of Oregon a restraining order against the deployment of federal agents in Portland, the ACLU has been successful obtaining a restraining order against the use of force by police and federal agents against the press and legal observers. In all the situations cited by the ACLU, the press and legal observers were 30-40 feet away from protestors, wearing press badges as well as vests clearly identifying them as NOT protestors. The order stops federal agents from dispersing, arresting, threatening to arrest, or targeting force against journalists or legal observers at the Portland protests for 14 days. A restraining order stops temporarily an activity, until a full hearing or review of the matter is possible. Seattle erupted in sympathetic protests this weekend and a federal in Seattle judge ruled that a recent ordinance approved by the Seattle City Council that bars police from using tear gas, pepper spray and other crowd control devices COULD go into effect on Sunday hopefully reducing harm to any and everyone. Black Lives Matter organizers in Chicago, joined journalists and civil rights attorneys to file a preemptive suit in federal court against the Trump Administration to prevent federal agents from being utilized Portland-style in Chi-town.   

 

FEDERAL POLICE?

The  Secretary of Homeland Security justifies the use of federal agents in Portland under 40 U.S. Code § 1315, which is most commonly used to enlist help for the Federal Protective Service, to protect federal property. The Department of Justice also has power under federal criminal law to protect government property.  U.S. Marshals, Federal Protective Service, U.S. Customs and Border Protection and Homeland Security Investigations (ICE) have alternated officers through Portland. The U.S. Marshals Service appears to be the lead agency. Department of Justice Office of Inspector General is reviewing federal agent activity in Portland. The administrative agencies that house these agents are under the direction of the President or an appointed leader. Some of these agencies are under the direction of interim presidential appointees because they never completed the congressional review of those appointments which is the norm. Perhaps that plays a part in the ease with which the federal agents appeared at protests. Perhaps a more qualified appointee would have refused the request to use federal agents. Some have argued that the agents are poorly trained because they were never meant to police civilians or civil unrest. What if all of this is perfectly legal?

 

THE Constitution

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security.” (James Madison, Federalist Paper #45)

If the above was TL;DR,  et me break it down. The Federalist Papers are newspaper articles written by James Madison, John Jay, and Alexander Hamilton, published in New York newspapers during the debates over the drafting of the Constitution. The helps us understand what the framers were debating and how THEY understood the powers they incorporated into the Constitution. The above says, federal power is greatest during time of war. Otherwise, federal power is limited and small and must defer to the states. For the state’s main concern should be the lives and property of the people and “internal order.” It does seem that while the letter of the law may allow the presence of federal agents the spirit of the law does not. And perhaps the letter of the law also does not. A court will need to declare that or a new law must be passed to ameliorate the situation.      

 

Author Michael Lewis, in his 2018 book The Fifth Risk: Undoing Democracy, describes the danger to America of poor appointments to important agencies. The current administration has not appointed competent leaders for critical agencies. Agency directors who are incompetent (lack of experience) create all types of insecurity over legitimacy. Poor leadership decisions have caused great harm in the past – Waco.

The civil unrest of today is extraordinary. We were legally unprepared. It is time to catch up.