Does Federal Policing Violate U.S. Constitution?

By Surendran K. Pattel

There can be little doubt that the Trump administration’s provocative decision to send federal agents to  “police” city streets in Portland, Ore, was a clear violation of the U.S. Constitution. Without question, such federal “policing” infringes on state and local rights and powers.

The fact is, there is far more clarity in the Constitution regarding the separation of federal and state/local roles in law enforcement than there is in the more frequently discussed issue of separation of church and state.

As Judge Anthony Napolitano put it in a column posted on the Trump-friendly Fox News website, many of the actions of federal agents in Portland have been “unlawful, unconstitutional and harmful.” As Napolitano notes, the federal government cannot legally deploy police or military domestically unless a state legislature or governor requests such assistance. Such was not the case in Portland, where  federal agents seem to have provoked protesters rather than diminish tensions. (The Portland situation differs from that of Chicago in that Illinois officials have agreed “reluctantly” to accept federal assistance in policing the Windy City.)

History informs us that the framers of the Constitution, fully aware of the broad powers of the federal government they had invented, were at the same time wary of big government and its potential to undercut liberty and freedom. As a result, in the arena of law enforcement our Constitution specifies limited policing powers for the federal government, with remaining concerns to be determined by state and local governments.

That is the thrust of the 10th Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In short, we are in the territory of states’ rights.

The Constitution specifies that the federal government be concerned with policing such crimes as counterfeiting, piracy and treason, for example. In addition, because Congress is given constitutional authority over certain other specific issues (such as bankruptcies and post offices), it is reasonable for Congress to enact criminal legislation related to those subjects.

Given such well-defined constitutional limitations, it seems clear that the federalization of other policing is overreach that can result in the endangerment of public safety and a violation of our rights. Even more important, most sources agree that the federalization of policing leads too often and too recklessly to the militarization of policing. Such militarization is believed to have resulted in the violence at Waco and Ruby Ridge.

Beyond important constitutional concerns, we must answer this question: Are we willing to risk a horrific climax to our continuing discontent over racism and police brutality? 

What we need at this moment are leaders in government, in law enforcement, and among protesters who know and respect constitutional powers and limitations — not to mention respect for one another.

Surendran K. Pattel is a trial lawyer and appellate attorney who has represented clients in Fort Bend, Harris and Brazoria counties.

The founder of PKS Law Firm, PLLC, he also sought the Democratic nomination for judge of District Court 505 in the current election cycle.