Having sent officers from the Department of Homeland Security to Portland, Ore., President Donald Trump is now saying that he will send more federal agents to other U.S. cities to fight crime. His actions, already heavily criticized by elected officials in Oregon, raise serious constitutional questions. How and when may the president deploy armed federal officers across the country? What are the limits? And, what if anything, can states or citizens do about it?
The president, as head of the executive branch, has the constitutional duty and authority to "take care" that the laws of the United States are faithfully executed. This includes sending federal officers to protect federal property and enforce federal law.
Good examples aren't hard to find. When President Barack Obama's administration sent federal officials to confront Cliven Bundy in 2014, that was perfectly lawful and constitutional. When a citizen claims that the federal government does not own federal land, it can be appropriate for the government to demonstrate that it in fact does own that land.
Similarly, although of much greater moral significance, President Dwight D. Eisenhower sent the 101st Airborne to enforce federal law and the Constitution by integrating the Little Rock schools in 1957. This was an extraordinary act, but entirely legitimate in light of the state of Arkansas's open resistance to the authority of the U.S. Supreme Court.
Most famously, President Abraham Lincoln sent federal troops to suppress the secession of the Confederate states based on the argument that he must enforce federal law and protect federal property, including Fort Sumter.
Yet these executive rights and responsibilities are extremely different from what Trump is presently doing. In Portland, it appears that no federal property has been jeopardized by any failure of state or local police. As for the enforcement of federal law, that is restricted to crimes affecting state commerce and specifically enumerated in federal law or in the Constitution. That does not include ordinary criminal investigation or the policing of the streets. It certainly does not include the exercise of protected constitutional rights like peaceful protest.
It follows that it is unconstitutional and unlawful for DHS officers to enforce nonfederal law unless they are deputized by state or local officials — not the president — to do so. And Portland officials, far from making the DHS officers into deputies, have instead publicly expressed their outrage at the officers' presence and demanded their removal.
In an attempt to push back, Oregon Attorney General Ellen Rosenblum announced Friday that she planned to file a lawsuit in federal court, and on Monday, she asked for a temporary restraining order while that lawsuit goes forward. Read closely, the lawsuit does not directly challenge Trump's authority to send the DHS officers to Portland. That's because the AG understands that the president may send the officers to protect federal property and enforce federal law. Rather, the lawsuit alleges that DHS officers, unidentified because they were not wearing name tags, violated the federal constitutional rights of Oregon citizens by arresting them and detaining them without cause while they were exercising their constitutional right to freedom of speech and movement.