This month, President Trump deployed law-enforcement agents from the Department of Homeland Security to Portland, Oregon, ostensibly to protect federal property from protests that began after the killing of George Floyd. But these D.H.S. agents, who wear military-style camouflage, have not identified themselves as law enforcement and have arrested and detained protesters without probable cause, inflaming protests in Portland and other cities, with many Americans furious that the Administration has sent federal law-enforcement officers to fulfill policing functions that are not part of Washingtons governing mandate. On Tuesday, in a tense hearing before the House Judiciary Committee, Attorney General William Barr defended the deployments, arguing that violent rioters and anarchists have hijacked legitimate protests to wreak senseless havoc and destruction. The following day, Oregons governor announced that an agreement had been reached with D.H.S. to withdraw the deployed personnel from Portland; the department responded by saying the agreement was conditional on the safety of federal property within the city.
To talk about the significance of the deployments, and what legal remedies may be available, I spoke by phone on Tuesday with Mary McCord, who served as an Assistant U.S. Attorney for the District of Columbia for almost two decades, and was the acting Assistant Attorney General for National Security, from 2016 to 2017. She is now the legal director of the Institute for Constitutional Advocacy and Protection at Georgetown Law. During our conversation, which has been edited for length and clarity, we discussed who has standing to legally challenge the deployments, the dangers for everyone involved when law-enforcement officials are unwilling to identify themselves, and whether Congress needs to change its approach to legislating to circumscribe future Presidents.
If you were talking to someone who had no idea what was going on in Portland and, to a lesser extent, other American cities, how would you describe it to them?
I think what were seeing in Portland is a very heavy-handed use of legal authorities that were provided to D.H.S. and to the Federal Protective Service but never intended to be used for these purposes. The 2002 [Homeland Security] Act gave a lot of law-enforcement authority to D.H.S. and gave authority to the Secretary of Homeland Security to pull in other agents of D.H.S. as needed to supplement the Federal Protective Service in defense of federal property. I dont think anyone at the time would have foreseen that the Secretary would use that authority to bring Customs and Border Protection officers and such a large swath of officers to essentially engage in local crowd control, protest control, riot control. It was never meant to infringe upon the states sovereign right to exercise the police power within their jurisdiction.
If this Administration is using authorization that no one had envisioned them using, does that imply that the authorization exists, and there is not really any legal remedy, if they are only protecting federal buildings? And, in Portland and elsewhere, it seems like theyve gone beyond that. Is there any legal remedy in the second case?
One thing that is important to remember is there are always going to be legal remedies available for constitutional violations, even if law enforcement is deployed consistent with legal authorities. Some of the lawsuits youre seeing, which seem to be very well founded to me, are alleging First Amendment violations, Fourth Amendment violations, Fifth Amendment violations, because of the way that D.H.S. is carrying out its law-enforcement responsibilities, potentially in retaliation for protected First Amendment activity, or making arrests without probable cause and depriving people of their liberty without due process. Those are constitutional violations that theres certainly legal recourse for.
There are other, more creative theories that are being litigated right now, too, including theories about this type of encroachment on states police power, in violation of the Tenth Amendment, which reserves the police power for the states. There are some theories now, and at least one lawsuit, alleging that the D.H.S. acting Secretary is not properly holding that office, and that therefore any policies or orders that he gives should be unlawful. There are arguments being made, but, strictly speaking, if theyre acting within the confines of what the statute allows them to do, then that would be hard to challenge, because Congress has given them that authority. I think the question becomes, Is that what theyre doing?
The statute thats most frequently cited is Section 1315, and that statute does allow, as I mentioned before, the protection of federal property. That doesnt mean you have to be on the federal property at the time youre asserting law-enforcement ability or law-enforcement function. Lets just assume someone firebombed a federal building, causing serious damage. D.H.S. could pursue somebody they witnessed commit that crime and make an arrest off of federal property. But I think it gets more difficult for a layperson to determine if theyre acting within their authority when you see them far away from federal property. Certainly, we have seen them abducting people off the streets and taking them in for questioning, which appears to be a Fourth Amendment violation and probably other constitutional violations, but also doesnt seem to be tethered to anything that mightve happened at the federal property.
Does that mean theres no legal recourse? No, I dont think it means that. Its just that there will be overlaps of federal authority and state authority where it gets murky about whether they have gone beyond their authority.
If people in D.H.S. are being ordered to do things that have nothing to do with the protection of federal buildings, even if they were authorized explicitly by the President, is there any recourse for that, if theyre not violating peoples constitutional rights? If the statute is being violated, how is that litigated? Is it just up to the people in the bureaucracy to say, No, I wont carry out these orders?
I think certainly thats one option. Whistle-blowers within D.H.S. could say, Were being ordered to do things that seem to us to be beyond the powers that are authorized by Section 1315. They could certainly go through the agencys whistle-blower system in order to report that. And then you could have litigation saying that the agency is acting beyond its statutory authority, so its acting outside accordance of law. It can also be alleged right now. In fact, it is alleged in a case that was filed this week, on behalf of Dont Shoot Portland and Wall of Moms and some other individual plaintiffs. They are making specific allegations of D.H.S. acting beyond its statutory authority. Those are things that can be litigated.
Any litigation requires the plaintiff to have standing, which just means an ArticleIII injury that is concrete and particular, not general. Certainly individuals who personally have been harmedthose whove been shot with tear gas or non-lethal bullets or subject to being arrested without probable causehave a basis to sue, not only for constitutional violations but potentially for the agency acting beyond its authority. At least, for injunctive relief. Sometimes organizations, in the case Ive mentioned, are suing, saying their mission and resources are being diverted because of this. Were not able to do the work that we are organized to do. Each plaintiff would have to have standing, and a court would decide if the plaintiffs had standing.
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