Federal Police Powers

Donald Trump’s recent executive order declaring a crime emergency in Washington, D.C. has created quite an uproar, both for and against. While there have been many claims on both sides, what I haven’t heard, except for my radio program, is a real constitutional analysis of his actions. With his recent post about sending National Guard troops to Chicago, I think it’s time we do that type of analysis.

Before we dive into this situation there is one thing we need to understand. Washington, D.C. is different from any other city in the nation.

Why is Washington, D.C. Different

What makes Washington, D.C. different isn’t that it’s the nation’s capital, but how it became that. Unlike any other city in the nation, Washington, D.C. is a federal city in a federal district. Congress, and only Congress, has legislative authority over the district. Congress has the power…

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, U.S. Constitution, Article I, Section 8, Clause 17

What we now call the District of Columbia is that portion of land given by Maryland for the seat of the government of the United States. (Virginia originally conceded land as well, but they asked that it be returned.) This means that D.C. is not a subdivision of any state, and for very good reason. The Framers of the Constitution did not want members of Congress or officers of the United States to be harassed or manipulated by any single state. Hence the requirement that states concede land for the district. Since this would be a federal district, the federal legislature, Congress, has exclusive legislative power over it. However, only over that district, and other land legally acquired with the consent of the legislature of the state where it is found for things like ports, dock yards, and other needful buildings. That is not to say that Congress has always followed the Constitution in this matter.

D.C. Home Rule

While people often refer to the “D.C. Home Rule Act”, the proper name is the District of Columbia Self-Government and Governmental Reorganization Act. The purpose of this act is:

Subject to the retention by Congress of the ultimate legislative authority over the Nation’s Capital granted by article I, section 8, of the Constitution, the intent of Congress is to delegate certain legislative powers to the government of the District of Columbia… District of Columbia Self-Government and Governmental Reorganization Act – §102

Here we encounter the first problem with this act. While it claims that Congress retains ultimate legislative authority of the nation’s capital, as I’ve already shown Article I, Section 8 states that Congress has exclusive legislative authority. Exclusive authority means a power “enjoyed to the exclusion of others” (Webster’s 1828 Dictionary). If Congress is to have exclusive legislative authority, they cannot delegate some of those powers to another; otherwise their authority would not be exclusive. That makes this act unconstitutional and void. But let’s put that aside for a moment, like everyone else is doing.

Executive Order

President Trump signed an executive order stating:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 740 of the District of Columbia Self-Government and Governmental Reorganization Act (Public Law 93-198), as amended (section 740 of the Home Rule Act), and section 301 of title 3, United States Code, it is hereby ordered: DECLARING A CRIME EMERGENCY IN THE DISTRICT OF COLUMBIA

President Trump is claiming power under §740 of the “Home Rule Act” and 3 USC §301. Let’s start with this first.

§740 of the Home Rule Act

Part of the “Home Rule Act” allows the President to act in an emergency.

Notwithstanding any other provision of law, whenever the President of the United States determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for Federal purposes, he may direct the Mayor to provide him, and the Mayor shall provide, such services of the Metropolitan Police force as the President may deem necessary and appropriate.  District of Columbia Self-Government and Governmental Reorganization Act – §740(a)

Contrary to both the words and actions of the Trump administration, the act does not give the President the authority to take over law enforcement within the district. Rather, it allows him to tell the Mayor to provide the services of the Metropolitan Police Department (MPD) as the President sees fit. The Act does not give the President the authority to restructure the MPD or to make personnel changes. There is also a time limit to the President’s power.

In no case, however, shall such services made available pursuant to any such direction under this subsection extend for a period in excess of forty-eight hours unless the President has, prior to the expiration of such period, notified the Chairman and ranking minority Members of the Committees on the District of Columbia of the Senate and the House of Representatives, in writing, as to the reason for such direction and the period of time during which the need for such services is likely to continue. District of Columbia Self-Government and Governmental Reorganization Act – §740(a)

The President has forty-eight hours before he either terminates the emergency or notifies the top two members of the committees overseeing the district in both the House and Senate. He does not yet have to ask permission, only notify them, in writing, of reason for his declaring an emergency. That doesn’t mean there isn’t a time limit on the powers vested in the President by this act.

Subject to the provisions of subsection (c) of this section, such services made available in accordance with subsection (a) of this section shall terminate upon the end of such emergency, the expiration of a period of thirty days following the date oh which such services are first made available, or the adoption of a resolution by either the Senate or the House of Representatives providing for such termination, whichever first occurs. District of Columbia Self-Government and Governmental Reorganization Act – §740(b)

So the President has this power for 30 days. Of course, Congress can, by joint resolution, terminate the President’s powers earlier unless Congress says otherwise.

Except to the extent provided for in subsection (c) of this section, no such services made available pursuant to the direction of the President pursuant to subsection (a) of this section shall extend for any period in excess of thirty days, unless the Senate and the House of Representatives approve a concurrent resolution authorizing such an extension. District of Columbia Self-Government and Governmental Reorganization Act – §740(d)

So Congress can technically extend this emergency power indefinitely, but only Congress has that power.

3 USC §301

I find President Trump’s claim’s under 3 USC §301 interesting, because it reads.

The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President:  3 USC §301

Section 301 of Title 3 only allows the President to delegate the authority to perform the actions of President to the head of a branch or agency. There is one caveat though.

Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. 3 USC §301

This means that the President cannot throw up his hands and let someone else do the job; he is still responsible for the acts of those he designates. However, this law has nothing to do with his actions under the “Home Rule Act”.

Posse Comitatus

One of the claims I’ve heard from both politicians and pundits is that President Trump’s actions violate the Posse Comitatus Act.

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. 18 USC §1385

First, let’s define posse comitatus.

Referred at Common Law to all males over the age of fifteen on whom a sheriff could call for assistance in preventing any type of civil disorder. Posse Comitatus – The Free Legal Dictionary

Notice that the list of military departments covered by this act does not include the National Guard. There’s a very good reason for that.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; U.S. Constitution, Article I, Section 8, Clause 15

Since the purpose of the militia is to secure the states (Second Amendment), it makes sense that they can be used to execute federal law (laws of the union).

Historically, the Posse Comitatus Act has been limited to using the regular military for law enforcement. However, by looking at the definition of posse comitatus, using the regular military to maintain order would be a violation as well.

What about the deployment of Marines to Los Angeles during the anti-ICE riots earlier this year? According to the U.S. Northern Command, the mission of these Marines was “protecting federal personnel and federal property in the greater Los Angeles area.” Protecting federal people and property doesn’t sound like posse comitatus, at least not if it’s on federal property, and that’s not all.

Task Force 51 forces have been trained in de-escalation, crowd control, and standing rules for the use of force. USNORTHCOM statement on additional military personnel in the Los Angeles Area

While the Marines were not used to enforce federal law, their stated mission could easily extend into preventing civil disorder. USNORTHCOM’s comment on their training would seem to reinforce that belief, making the Marine deployment, not the National Guard, a violation of the Posse Comitatus Act.

Conclusion

Where does that leave us? Does the President have the legal authority to commandeer the services of the Washington, D.C. police department after declaring an emergency. Yes. Does he have the authority to make changes in that department? No. More importantly, does the President have the authority to take similar actions in other cities. No!

Remember, the Constitution limits the use of the National Guard to executing the laws of the union or, as we call them today, federal laws. Does that mean that the President can send federal law enforcement officers to cities like Chicago, New York, and New Orleans? Yes, but only to enforce constitutional federal laws. Crimes like mugging, car jacking, and burglary are only a violation of federal law when done on federal land.

While I haven’t seen an order from the President yet, it’s my understanding that his plan is to use the National Guard and agents of federal law enforcement to assist Immigration and Customs Enforcement (ICE) in executing federal immigration laws. Setting aside the constitutionality of those laws, using the National Guard and federal law enforcement to execute federal law is both constitutional and legal. However, President Trump is claiming his plans to send the National Guard and federal law enforcement to these cities is because of their crime statistics. Since the vast majority of those crimes are not federal though, the President has zero authority to enforce them.

From all of this I conclude that while parts of what President Trump has done, along with the intentions he has expressed, are constitutional, many are not. It’s rather like biting into a nice, ripe apple, only to find a worm inside. The rest of the apple may be fine, but where the worm exists, it’s rotten. Maybe we should cut out the rotten parts of Trump’s executive orders before we move forward.