Trump, the Constitution, and Portland

        There are lots of problems constitutionally and politically with President Trump sending federal forces into places such a Portland, Oregon or Chicago, Illinois allegedly to restore order.  Overlooked in most stories are how these federal agents represent the return of the agent provocateur as a tool of politics.

            Start with the basics.  Trump issued an executive order declaring authority to send in federal agents to cities and states in order to restore order.  Constitutionally there are numerous problems here.  No one will argue that the federal government has the authority to use its authority to protect its facilities such as courthouses.   Inherent within Article II of the Constitution–either section one which vests executive power in the president or section three which says the president shall take care that the laws shall be faithfully executed–one can find ample authority to do that.

            However, remember that the US Constitution is a power-conferring document.  There is no inherent federal or presidential authority–all of it must be traced back ultimately to some text in the Constitution.  Among the powers that the US government does not have is general police power.  By that, states have broad authority to enact laws to protect the health, safety, welfare, and morals of the people.  The police power is also what gives states the general authority to pass criminal laws and take enforcement actions to maintain law and order.  Because of this authority states and, when delegated to them, cities can create police departments.

            There is no federal equivalent.  There is no “Federales" or national police force in the US as there are in many other countries.  Not even the Insurrection Act of 1807 allows for that, contrary to what the president asserts. Any federal crimes or law enforcement must trace back to the Commerce or perhaps another constitutional clause.  The US government has no general criminal law jurisdiction or authority, especially at the state and local level.  On top of that, the Posse Comitatus Act of 1878 bans the US of federal troops for law enforcement purposes, reinforcing the notion that general policing is an issue for state and local governments according to the Tenth Amendment.

            But even though the US government lacks general policing authority, it is possible for them to intervene when requested by states or cities.  However, that is not the case with Portland or Chicago.  Trump is directing unnamed or marked federal agents to be deployed there, often without the knowledge and certainly against the request of local officials.  There is no constitutional authority to do that.  Finally, to the extent that these federal agents are simply arresting or roughing up peaceful protestors raises critical First Amendment questions, and if they are questioning them without advising them of their rights, there may also be Fifth Amendment issues. Overall, there are many  problems from a legal perspective here

Of course, Trump’s motives appear not legitimately law enforcement.  Post-George Floyd and the riots that occurred, the president is running a redux of the 1968 Richard Nixon law and order campaign, playing on the racial fears and anxieties of whites who saw the race riots of 1967 across the nation.   It is also a diversionary tactic to take away attention from his mishandling of the coronavirus and the economy.

            But the play book is even worse.  These federal law enforcement personnel are the new agent provocateurs—a person who intentionally encourages people to do something illegal.  The  term comes from nineteenth century France and the Soviet Russia period where the government used plains-clothes police to incite the opposition to break the law.  This is Trump’s tactic.  Take a tense situation  such as a  Black Lives Matter demonstration and send in plain clothes federal agents to arrest, question, and rough up. Also do it without local authorities knowing what is going on.  The recipe here is to inflame, giving the president a manufactured crisis in which he can show force to appease his base.  It is 1968, Chicago, and Mayor Daley all over again, with Trump hoping that the American public will react in the same way and go with the law and order candidate one more time.

            Four years ago, Trump declared immigrants to be the enemies from which he would protect us.  Now the enemies are internal and like four years ago when he fabricated legitimate immigrants and refugees into caravans of rapists and murders at America’s door, he now is trying to convert legitimate protests into threats on America with agent provocateur.