Federal agents in Portland set a dangerous precedent

The framers of the Constitution feared an overly powerful central government, especially one with a standing army capable of imposing its will. To counter that threat, they divided power between the states and the federal, government, relied on militias for national defense, and empowered local authorities to uphold law and order with the federal government lending support as needed.

Less than a decade after ratifying the constitution, the new republic faced its first challenge. To relieve debt incurred during the Revolution, Congress passed an excise tax on distilled liquor in 1791. Small farmers and distillers on the Western Pennsylvania frontier refused to pay the tax and attacked revenue agents. Protests escalated to armed insurrection. In 1794, President George Washington sent a force of 12,000 federalized militia from nearby states to suppress what came to be called the Whiskey Rebellion, but only after a getting judicial opinion from Justice James Wilson that such intervention was necessary. 

The federal government faced another threat in 1805 when Aaron Burr, Thomas Jefferson’s former vice president, plotted to lead western territories in a secessionist movement. The plot came to naught, but it frightened the government into passing the 1807 Insurrection Act. The law empowered the president to use the armed forces “in cases of insurrection, or obstruction of the laws” of states or the Federal government. Andrew Jackson became the first president to invoke the law to suppress Nat Turner’s slave rebellion in 1831.

Abraham Lincoln used the Insurrection Act as a legal justification for fighting the Civil War. After the war, Congress extended federal authority through what became article 10, section 253 of the U.S. Code, which gave the president the ability to enforce the 14th Amendment and impose reconstruction on the southern states.

The Insurrection Act has always been controversial. In 1878, Congress passed the Posse Comitatus Act to prevent the government from using soldiers to enforce ordinary law. Congress felt that federal troops occupying the south had prevented people from voting for Samuel Tilden in the disputed election of 1876. The new law restricted but did not prevent federal intervention. 

Presidents have employed the Insurrection Act on several occasions since the passage of the Posse Comitatus Act. Woodrow Wilson used troops to quell labor unrest in Colorado in 1914. In 1932, Herbert Hoover used the army to clear the Bonus Marchers (WWI veterans seeking early payment of bonuses) out of Washington, D.C. In 1943, President Franklin Roosevelt deployed troops to stop race riots in Detroit. In each of these cases, the president acted at the request of local authorities. 

On four occasions during the mid-twentieth century, presidents have deployed federal forces without state approval. In 1954, President Eisenhower sent troops from the 101st Airborne Division into Little Rock, Arkansas to protect nine African American students attending Central High School. Neither the Governor nor the state legislature had asked him to intervene, but he was enforcing court-ordered desegregation and responding to a request for help from the mayor of Little Rock.

In 1962, President John F. Kennedy deployed U.S. marshals to protect an African American student matriculating at the University of Mississippi and sent troops to quell subsequent riots. The following year, Kennedy intervened twice in Alabama, protecting two African American students registering at the University of Alabama and upholding an order to de-segregate Tuskegee High School. 

Presidents Lyndon Johnson and George H.W. Bush used troops to quell race riots. Johnson deployed them to Detroit in 1967 and to Washington, Chicago, and Baltimore the following year. Bush deployed 4,000 soldiers and marines to Los Angeles to stop riots in 1992. In each of these cases, the president was responding to local requests for help. 

When the death of George Floyd inspired widespread protests, President Trump threatened to deploy troops if governors and mayors did not “defend the life and property of their residents.” This threat leads many experts to speculate Trump might invoke the Insurrection Act. Legal scholars argue that while he could interpret the law to allow for intervention against the wishes of state and local officials, such action would be open to a court challenge. 

The White House chose instead to use a clause in the 2002 Homeland Security Act, allowing the Secretary of Homeland Security to deploy federal agents and officers to “protect the buildings, grounds, and property that are owned, occupied or secured by the Federal Government,” as well as the persons occupying them. The secretary may use personnel from numerous agencies under the Department of Homeland Security, including the Border Patrol Tactical Unit, for this purpose. 

Based on this historical overview, President Trump’s actions set a dangerous precedent. In most cases, Presidents have intervened solely at the request of local authorities and only as a result of far greater levels of violence than what has occurred in Portland. Presidents Washington and Lincoln had to suppress rebellions. Since the Civil War, however, only Eisenhower and Kennedy acted without state approval, but they were enforcing court decisions. 

Far from requesting help, the governor of Oregon and the mayor of Portland have asked the White House not to intervene. Considerable evidence suggests federal agents are contributing to the violence rather than de-escalating it. Critics also claim that these agents have exceeded their authority, ranging far from the property they are supposed to protect and arresting people on dubious grounds. 

The sight of armed men in combat fatigues without name tags driving around in unmarked vehicles to detain protestors might have been expected in Nazi Germany, the Soviet Union, or the Latin American dictatorships of the 1970s. Such tactics have no place on the streets of an American city in 2020.

Tom Mockaitis is a professor of History at DePaul University and author of “Violent Extremists: Understanding the Domestic an International Terrorist Threat.”