President Trump’s use of federal agents in Portland is not only outrageous, it is clearly unconstitutional.
One of the most basic principles of our system of law is that for the federal government, including the president, to take an action, there must be constitutional and statutory authority. In light of this, what can and can’t the president do when it comes to law enforcement in cities?
Trump can invoke authority under the Insurrection Act of 1807, which allows presidents to send troops when “any insurrection, domestic violence, unlawful combination, or conspiracy” prevents enforcement of state laws in a manner that deprives residents of that state of their federal constitutional rights. President Eisenhower used this statute to desegregate the Little Rock, Ark., public schools in 1958, as did President George H.W. Bush during the 1992 riots in Los Angeles.
But the statute requires the president to issue a formal proclamation before troops are dispatched. Trump has issued no such proclamation, nor does he claim that his actions are an exercise of power under the Insurrection Act. Moreover, the predicate for invoking the Insurrection Act is not met; there is no indication that the situation in Portland (or any of the other cities Trump has earmarked for federal intervention) is preventing enforcement of the law in a way that deprives individuals of their constitutional rights.
Under the Insurrection Act, the president can also comply with a state's request to send troops. But the governor of Oregon and the mayor of Portland, and more recently, the mayor of Chicago, have expressly said that they don’t want federal agents stepping into law enforcement in their cities.
Besides the powers granted by the Insurrection Act, the president — the executive branch — also can dispatch federal personnel to states to enforce federal laws. So, for example, the FBI can investigate violations of federal law, such as kidnapping and bank robbery. Immigration and Customs Enforcement can enforce federal immigration laws.
The Trump administration claims that the border patrol is in Portland on just such a mission — protecting federal property, including a courthouse. But that pretext cannot be squared with federal officers dispersing protesters and arresting people far from federal buildings.
Nor is the claim of protecting federal property consistent with Trump’s much broader assertion that he is using federal officers to combat anarchists and restore order. It is also highly questionable that the federal border patrol may be involved in actions that have nothing whatsoever to do with border enforcement, especially in places, like Chicago, many hundreds of miles from any border.
As to what the president can’t do: Federal law enforcement personnel cannot be used to enforce state and local laws. It’s basic to the Constitution — state and local governments have the police power; federal officers are limited to enforcing federal law. But Trump clearly says he is sending officers to cities with “liberal Democrats” as mayors as a way to stop protests and “restore order.” Absent invoking the Insurrection Act, he simply does not have the power. Ironically, it is conservatives — Republicans — who have usually championed federalism and respect for the authority of state and local governments, but not Republican Donald Trump.
Another can’t: The president cannot authorize violations of the First and Fourth Amendments.
In Portland, it appears that individuals have been arrested who were engaged in peaceful protests and not breaking any law. This upends the First Amendment’s guarantee of free speech and freedom of assembly, as does the use of tear gas and projectiles to disperse peaceful protesters. And for the president to use federal law enforcement in a blatantly political way — that earmarking of cities with “liberal Democratic mayors” — also infringes core principles of the First Amendment.
As to the Fourth Amendment, in news reports, protesters in Portland describe being put into unmarked police cars by officers who did not identify themselves, being detained in the federal building and then released. These are arrests without probable cause, violations of the amendment’s guarantees against unreasonable search and seizure.
Oregon has filed suit against Trump’s use of federal forces in Portland. Individuals who were illegally arrested and detained are sure to sue. We have to hope the courts will step in quickly, recognizing how truly extraordinary and dangerous Trump’s unconstitutional actions are for the Constitution and for democracy.
No prior president ever commanded a federal police force in this way to quell political protests. Nor has a president said that he would use troops based on the political party of the mayor. Never before has a president so blatantly used federal law enforcement for his own political messaging. Nor have presidents sent unidentified federal law enforcement officers, dressed in military clothes, in unmarked cars, to pick people up off the streets willy nilly and take them into custody.
Trump constantly speaks of the dangers of anarchists. Anarchy is what happens when the law is ignored. That is exactly what the president is doing in Portland.
Erwin Chemerinsky is the dean of the UC Berkeley School of Law and a contributing writer to Opinion.