By C.J. Ciaramella / Special to The Washington Post
Against the express wishes of Portland’s mayor, Oregon’s governor and both of its U.S. senators — all Democrats — a federal crackdown cartoonishly named “Operation Diligent Valor” proceeds against demonstrations at the city’s federal courthouse that have gone on for nearly two straight months.
In Georgia, there’s an ongoing battle over mask mandates in response to Covid-19: Republican Gov. Brian Kemp issued an order suspending mask requirements in more than a dozen cities, and barring cities from implementing mask policies that are more restrictive than the state’s. Kemp sued Atlanta’s mayor and city council, and accused Mayor Keisha Lance Bottoms of ordering the Atlanta Police Department not to enforce the state’s ban on gatherings of more than 50 people.
And who can forget President Trump declaring in April that he could order states to reopen their economies? “When somebody’s the president of the United States, the authority is total,” he said. “And that’s the way it’s got to be. It’s total. It’s total. And the governors know that.”
Once upon a time, the rejoinder from right-wing radio hosts, activists and Republican politicians would have been “Don’t Tread on Me” (or, in the case of federal gun control legislation, a more direct challenge along the lines of “Come and take it”). In the tea party’s heyday — only a decade ago — Republicans and conservatives were evangelists of federalism and limited government. In a 2014 Wall Street Journal op-ed headlined “The Imperial Presidency of Barack Obama,” Sen. Ted Cruz, R-Texas, warned that “an imperial presidency threatens the liberty of every citizen.” In 2016, the GOP platform condemned the Obama administration’s “unconstitutional expansion into areas beyond those specifically enumerated, including bullying of state and local governments.”
Now, they’ve mostly gone quiet.
Defenders of the Portland operation point to the unrest — vandalism and fires targeting the federal courthouse — as evidence of the need for federal intervention. The government has the authority to protect federal property; and the city, they argue, is enabling anarchists to run wild. “By any objective standard, the violence, chaos and anarchy in Portland is unacceptable, yet Democrats continue to put politics above peace while this president seeks to restore law and order,” White House press secretary Kayleigh McEnany said Tuesday. Sen. Tom Cotton, R-Ark., called the protesters “insurrectionists” and compared them to Confederate secessionists.
Writing for The Washington Post, Garrett Graff explained his view that Diligent Valor and Operation Legend (a separate initiative under which the Trump administration is sending federal law enforcement to Chicago and Albuquerque) aren’t justifiable, but that they’re likely legal.
Even if they’re legal, these operations stretch the spirit of the law to the point of unrecognizability. They also run afoul of supposed core principles that Republican administrations, including Trump’s, pay lip service to. That’s led to accusations that Trump is using unidentified Department of Homeland Security officers as his personal secret police force, invoking dark imagery of totalitarian governments. “Welcome to the world of performative authoritarianism,” writes The Atlantic’s Anne Applebaum, where the point of violating citizens’ rights, and working at cross purposes from state and local leaders “is not to bring peace to Portland. The purpose is to transmit a message” that Trump, the figure at the top, is in charge.
It’s true that federalism is a two-way street. The freedom of cities, counties and states to manage their own affairs keeps the federal government in check, and the higher levels of government also provide a safeguard against fresh, locally sourced tyranny and mayhem. So when a sheriff decides that the Fourth Amendment is more of a suggestion than an imperative, or a mayor bans drive-in church services for dubious reasons, there is someone to petition for redress of grievances besides the source of the grievances.
Suffice it to say, though, that presidential administrations view the scope of this federal watchdog role differently. The Obama administration launched a series of “pattern or practice” investigations into police departments accused of systemic civil rights violations. When the Justice Department’s Civil Rights Division substantiated those claims, it often negotiated court-enforced settlements, known as consent decrees, to force police departments to reform.
The Justice Department under Trump has taken a keen interest in religious freedom and campus free speech, involving itself in court challenges and issuing executive orders.
But the Trump administration largely abandoned the use of consent decrees to rein in rotten police departments. Trump’s first attorney general, Jeff Sessions, complained that they tied the hands of departments, who knew best how to police their own cities. “These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness, and we need to be careful before we do that,” Sessions said in his Senate confirmation hearing. One of Sessions’s last moves in office was to issue a memo limiting how and when the Justice Department can pursue consent decrees. The memo cited concerns with federalism as one of the primary reasons.
Apparently, though, the Trump administration now has no such faith in local expertise when it comes to mayors and police departments it thinks aren’t cracking down hard enough on protesters, undocumented immigrants or whomever the boogeyman of the week is. And the administration is expressing in no uncertain terms the view that it doesn’t need permission to exert its will on the locals. “I don’t need invitations by the state, state mayors or state governors to do our job,” Chad Wolf, the acting secretary of the Department of Homeland Security, said in a Fox News interview. “We’re going to do that, whether they like us there or not.”
Admittedly, the push and pull between the states and the federal government is complicated, and sometimes federalism’s two-way street turns into one of those confusing European roundabouts: Is overriding a mask mandate freeing residents from oppressive local government, or is it thwarting the mandate of duly elected local leaders? Is it consistent to applaud a sheriff for ignoring a governor’s order in one state while lauding a governor in another state for suing cities that ignore his order?
What seems clearer is that for Kemp, Trump and other leaders, the answer turns on partisan concerns, not ideological conviction. Notably, the cities that Trump is deploying federal law enforcement to, and the cities where Kemp overrode mask ordinances, are run by Democrats.
And even if Democrats, in this case, don’t suffer from the same ideological inconsistencies, some have shown a different kind of hypocrisy: After going to the site of protests, Portland Mayor Ted Wheeler coughed and gagged after being teargassed by federal officers, telling reporters that it was an “egregious overreaction,” even as protesters reminded him that the Portland Police Bureau, under his direct control, had been using the same tactics on them for weeks, without a peep from some of the same Oregon Democrats now denouncing the federal deployment.
Wait long enough, and you get to see the parties flip their positions on executive overreach time and again.
During the Obama administration, Republicans questioned — rightly — why the Environmental Protection Agency used a heavily-armed task force to investigate an alleged Clean Water Act violation in Alaska, or why the U.S. Fish and Wildlife Service thought it was necessary to raid Gibson’s guitar factory on suspicions that the manufacturer was using illegally imported wood.
In the further reaches of the conservative movement, these concerns sometimes blossomed into noxious paranoia, such as the obsession, in some corners, with Operation Jade Helm, a 2015 U.S. military exercise feared to be some sort of covert plot to occupy Texas. In 2015, Rep. Louie Gohmert, R-Texas, fretted that “When the federal government begins, even in practice, games or exercises, to consider any U.S. city or state in ‘hostile’ control and trying to retake it, the message becomes extremely calloused and suspicious.”
Today, a Republican administration claims that it’s fair game to deploy over 100 federal agents to a major city three time zones away from Washington. They’d do well to remember how it feels when the tactical police boot is on the other foot.
C.J. Ciaramella is a criminal justice reporter for Reason magazine.