In the same week in which President Donald Trump announced that he was federalizing 200 Oregon National Guard soldiers and dispatching them to the streets of Portland, he quietly signed a Presidential National Security Memorandum that purports to federalize policing. The Memorandum, just like the federalization of troops in Oregon, completely disregards constitutional safeguards against such practices.
Here is the backstory.
When James Madison and his colleagues crafted the Constitution and shortly thereafter the Bill of Rights, they intentionally created a limited federal government. They confined the federal government to the 16 discrete powers granted to Congress. Those powers identify areas of governance uniquely federal. Conspicuously and intentionally absent is public safety. To clarify this, the 10th Amendment articulates the reservation by the states of powers not granted to the feds. This relationship is called federalism.
Constitutional scholars often refer to the powers retained by the states as the police power. The use of the word “police” here doesn’t mean police officers on the streets. It means the inherent and never-delegated-away powers of the states to govern for the health, safety, welfare and morality of all persons in those states.
In his famous Bank Speech, in which Madison argued brilliantly but unsuccessfully for a textualist understanding of the Constitution — he was opposing the creation of the First National Bank of the United States essentially because it was not authorized by the Constitution — he laid out the principles of limited government. He reminded those in Congress who had just sent the proposed Bill of Rights to the states for ratification that they did not constitute a general legislature that can right any wrong or regulate any behavior or intrude upon any relationship. Rather, their powers were limited to federal matters.
Merely because an area of governance is reflected nationally does not make the area federal. Chief among these is the police power.
The wall between state and federal law enforcement was generally recognized until 9/11. Prior to that, the FBI and other federal police agencies, none of which is authorized by the Constitution, generally devoted their efforts to enforcing federal law. After 9/11, the Bush administration — perhaps to divert public attention from its having slept on that fateful day — began a federal/state collaboration to fight “terrorism.”
Just as the war on drugs in the 1970s and ‘80s weakened the privacy protections of the Fourth Amendment, the war on terror in the 2000s weakened the constitutional fabric of federalism. With a public still shell-shocked over the attacks, and a Congress pliant to the presidency and the intelligence community, Congress enacted the Patriot Act, which permits federal agents to write their own search warrants, and the states fell subject to federal domination over their policing. Slowly, the feds began to intrude and dominate into areas of law enforcement with the false claim that nearly all crimes affected national security.
To garner public support for this, the feds engaged in ostentatious sting operations in which they lured disaffected young Muslim men into traps that were ostensibly criminal but were totally controlled. They then took credit for solving “crimes” that they had created. None of this was constitutional, yet few but the victims of the stings complained. Even the courts went along.
As Benjamin Franklin warned, when people fear for their safety, they will allow the government to curtail their liberty. Of course, this is all illusory, as history teaches that sacrificing liberty for safety enhances neither.
Now back to the Trump Memorandum of last week. It is chilling in its disregard for constitutional norms. It proclaims that public safety is now a federal priority and will be treated as such. The feds are told to begin investigating and disrupting any group of two or more persons who appear to be anti-capitalism, anti-American or anti-Christian.
At the same time, the president reserves the right to put armed troops into the streets of America’s cities. In the case of Portland, the president claimed that troops were needed because he saw riots on television. The governor of Oregon, the mayor of Portland, the chief of Portland police and the head of the Portland police union all challenged him, arguing in affidavits that what Trump claims to have seen did not occur in Portland.
What’s going on here?
Public safety is a unique governmental function intentionally left to those governments closest to the people affected by it. This is the Thomistic principle of subsidiarity: The employment of the fewest assets and least force by the government closest to the problem at hand is the most respectful of human freedom and often the most effective means of solving a problem.
Madison understood this and wove it into the fabric of the Constitution. But over the years, Congress — lusting for power nowhere granted to it in the Constitution — has used its spending power to create regulatory power. In 1987, when it offered hundreds of millions of borrowed dollars to the states to repave federal highways, it demanded that the states raise drinking ages in return. When South Dakota told the feds it will take their money and decide for itself what its drinking age should be, the Supreme Court told the state if you want the cash, you must accept the strings.
When South Dakota caved, the result was a congressional regulation of state drinking ages! This was just a small step on the way to where we are today. Today, the feds want to control all local law enforcement, and they want to do so by commandeering local police, examining the content of speech and deciding who is dangerous to the public good before a crime is committed.
The president told the military to practice their skills on Americans and he claims he can execute uncharged foreigners who he believes intend harm to Americans before they reach our shores. Can executing uncharged Americans because of the feds’ perceptions of their criminal predilections be very far behind?
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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