Constitutional experts say actions could become test case of states’ rights
By Gillian Flaccus
Associated Press
PORTLAND, Ore. (AP) — Federal officers’ actions at protests in Oregon’s largest city, hailed by President Donald Trump but done without local consent, are raising the prospect of a constitutional crisis — one that could escalate as weeks of demonstrations find renewed focus in clashes with camouflaged, unidentified agents outside Portland’s U.S. courthouse.
Demonstrators crowded in front of the U.S. federal courthouse and the city’s Justice Center late Monday night, before authorities cleared them out as the loud sound and light of flash bang grenades filled the sky.
State and local authorities, who didn’t ask for federal help, are awaiting a ruling in a lawsuit filed late last week. State Attorney General Ellen Rosenblum said in court papers that masked federal officers have arrested people on the street, far from the courthouse, with no probable cause and whisked them away in unmarked cars.
Trump says he plans to send federal agents to other cities, too.
“We’re going to have more federal law enforcement, that I can tell you,” Trump said Monday. “In Portland, they’ve done a fantastic job. They’ve been there three days, and they really have done a fantastic job in a very short period of time.”
Constitutional law experts said federal officers’ actions in the progressive city are a “red flag” in what could become a test case of states’ rights as the Trump administration expands federal policing.
“The idea that there’s a threat to a federal courthouse and the federal authorities are going to swoop in and do whatever they want to do without any cooperation and coordination with state and local authorities is extraordinary outside the context of a civil war,” said Michael Dorf, a professor of constitutional law at Cornell University.
“It is a standard move of authoritarians to use the pretext of quelling violence to bring in force, thereby prompting a violent response and then bootstrapping the initial use of force in the first place,” Dorf said.
Homeland Security was planning to deploy about 150 of its agents to Chicago, according to an official with direct knowledge of the plans who was not authorized to speak publicly and spoke to The Associated Press on condition of anonymity.
They were expected to stay in Chicago at least two months and could be be deployed to other locations at some point, the official said. Homeland Security said in a statement that the department does not comment on “allegedly leaked operations.”
The ACLU of Oregon has sued in federal court over the agents’ presence in Portland, and the organization’s Chicago branch said it would similarly oppose a federal presence.
“This is a democracy, not a dictatorship,” Oregon Gov. Kate Brown, a Democrat, said on Twitter. “We cannot have secret police abducting people in unmarked vehicles. I can’t believe I have to say that to the President of the United States.”
The Department of Homeland Security tweeted that federal agents were barricaded in Portland’s U.S. courthouse at one point and had lasers pointed at their eyes in an attempt to blind them.
“Portland is rife with violent anarchists assaulting federal officers and federal buildings,” the tweet said. “This isn’t a peaceful crowd. These are federal crimes.”
Top leaders in the U.S. House said Sunday that they were “alarmed” by the Trump administration’s tactics in Portland and other cities. They have called on federal inspectors general to investigate.
Trump, who’s called the protesters “anarchists and agitators,” said the DHS and Justice Department agents are on hand to restore order at the courthouse and help Portland.
Nightly protests, which began after George Floyd’s death at the hands of Minneapolis police, have devolved into violence.
The Trump administration’s actions run counter to the usual philosophies of American conservatives, who typically treat state and local rights with great sanctity and have long been deeply wary of the federal government — particularly its armed agents — interceding in most situations.
But Trump has shown that his actions don’t always reflect traditional conservatism — particularly when politics, and in this case an impending election, are in play.
One prominent Republican, Sen. Rand Paul of Kentucky, who is from the libertarian-leaning flank of the party, criticized federal policing.
“We cannot give up liberty for security. Local law enforcement can and should be handling these situations in our cities but there is no place for federal troops or unidentified federal agents rounding people up at will,” Paul said in a tweet Monday.
The protests have roiled Portland for 52 nights. Many rallies have attracted thousands and been largely peaceful. But smaller groups of up to several hundred people have focused on federal property and local law enforcement buildings, at times setting fires to police precincts, smashing windows and clashing violently with local police.
Portland police used tear gas on multiple occasions until a federal court order banned its officers from doing so without declaring a riot. Now, concern is growing that the tear gas is being used against demonstrators by federal officers instead.
Anger at the federal presence escalated on July 11, when a protester was hospitalized with critical injuries after a U.S. Marshals Service officer struck him in the head with a less-lethal round. Video shows the man, identified as Donavan LaBella, standing across the street from the officers holding a speaker over his head when he was hit.
Court documents filed in cases against protesters show that federal officers have posted lookouts on the upper stories of the courthouse and have plainclothes officers circulating in the crowd. Court papers in a federal case against a man accused of shining a laser in the eyes of Federal Protective Service agents show that Portland police turned him over to U.S. authorities after federal officers identified him.
Mayor Ted Wheeler, who’s has been under fire for his handling of the protests, said on national TV talk shows Sunday that the demonstrations were dwindling before federal officers engaged.
“They are sharply escalating the situation. Their presence here is actually leading to more violence and more vandalism. And it’s not helping the situation at all,” Wheeler said on CNN’s “State of the Union.”
“They’re not wanted here. We haven’t asked them here,” Wheeler said. “In fact, we want them to leave.”
Indeed, crowds of demonstrators had begun to dwindle a week ago, and some in the liberal city — including Black community leaders — had begun to call for the nightly demonstrations to end.
But by the weekend, the presence of federal troops and Trump’s repeated references to Portland as a hotbed of “anarchists” seemed to give a new life to the protests and attract a broader base.
On Sunday night, a crowd estimated at more than 500 people gathered outside the courthouse, including dozens of self-described “moms” who linked arms in front of a chain-link fence outside the courthouse. The demonstration continued into Monday morning.
“It seems clear that there were at least some federal crimes committed here,” said Steve Vladeck, a constitutional law professor at the University of Texas. “But the notion that a handful of federal crimes justifies a substantial deployment of federal law enforcement officers … to show force on the streets is, to my mind, unprecedented.”
“Federal law enforcement,” Vladeck said, “is not a political prop.”
