Twenty years ago, Supreme Court Chief Justice William Rehnquist—not generally thought of as a radical liberal—said: “We can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.” Last week Attorney General William Barr went full interventionist, telling the press that he was deploying federal law-enforcement officers to Chicago and Albuquerque, New Mexico (this coming after the previous week’s deployment to Portland), to combat “violent criminal activity.” President Trump said much the same thing as he rattled off cities his administration was eyeing for future intervention—Chicago, Philadelphia, Detroit—because of “gun violence” and “drugs.”
How greatly have traditional conservative values of federalism and limited government been transformed. Today, a sitting Republican president invokes the power of the federal government to send militarized Department of Homeland Security agents (equipped with military-grade weapons, body armor, tear gas, and camouflage, like armed forces entering a war zone) to swarm American city streets under unwritten rules of engagement. If video evidence now circulating is to be credited, these agents are not merely protecting federal property; they have detained citizens who aren’t violating any law and used the power of their presence to chill civil protests and disobedience.
This is a complete corruption of conservative ideals. There is nothing conservative about unconstitutional police activity, and there is nothing conservative about unilateral federal intervention in state affairs. Those are the acts of an authoritarian.
The consequences of this radical expansion of federal law-enforcement authority are enormous—and none of them are likely to be good. This is what is keeping both of us awake at night. We are conservatives who are united in our love of the Constitution, the limited rule of law, effective government, individual rights, and civil discourse. We believe in checks and balances and the separation of powers.
And we are watching all of this crumble before our eyes, as the executive branch deploys unchecked power.
For starters, the events now unfolding will make America’s reckoning with the challenges in its criminal-justice and policing system even more difficult. After George Floyd’s killing, law enforcement’s tenuous role once again took center stage in America’s communities, particularly for communities of color and those in poverty. Now whatever progress might have been made through reforms at the state and local levels will be subsumed under the weight of federal intervention. If repairing the relationship between law enforcement and the communities they protect was difficult before, the president’s unilateral intervention into local affairs has made it impossible.
Of equal importance, the president’s actions have undermined the Constitution and transgressed norms of acceptable presidential behavior. Deploying a federal strike force when the local government does not want it is, as former Homeland Security Secretary Michael Chertoff told The Washington Post, legally questionable. And Tom Ridge, who served as the first homeland-security secretary, under President George W. Bush, echoed that concern: DHS “was not established to be the president’s personal militia.” One of us, Paul Rosenzweig, served as the deputy assistant secretary for policy at DHS during the George W. Bush administration. But the reality is that a department created to protect the American people from external threats has now been transformed into a force against the very people it is supposed to serve.
How, then, can the nation repair the damage? We can think of several ways.
First, and most obvious, the other branches of government need to oppose and prevent this warlike activity. Specifically, for too long congressional oversight has atrophied. The Founders never imagined a supine Senate, willing to allow the president to exercise nearly limitless power in violation of every tenet of federalism.
Now is the time for Congress to respond. Most immediate, the appropriations bill for Homeland Security is due for consideration on the floor of the House later this week. The representatives will be derelict in their duty if they do not adopt some type of funding limitations that restrict the ability of DHS to be deployed as the president’s “personal militia.” And the courts, while limited by the doctrines of standing and jurisdiction, should block these breaches of America’s most basic values and norms whenever a case is properly presented.
Second, America must address the original grievance that has prompted these demonstrations in the first place, and which has only been exacerbated by Trump’s use of federal force. State and local governments must renew their efforts to reform local policing. When law enforcement is perceived as acting arbitrarily or oppressively, it loses a valuable tool in the cooperation and respect of the community. But it also gambles with something essential to police in a democracy—legitimacy and the people’s consent to law enforcement’s use of force on their behalf. America is closer than most people realize to whole communities simply rejecting the idea that police departments (at least as currently conceived) have any legitimate role to play in securing their communities. This is why police officers themselves should welcome reforms that can help heal divisions between them and communities of color. The legitimacy of the exercise of authority in a democratic republic is always a fragile thing, and America’s current approach to policing poor and minority communities is straining it to the breaking point.
Resolving these differences starts by focusing on three Ts: training, transparency, and transforming police culture. Police training should move away from its current “stress” model, drawn from the military, which disproportionately focuses on weapons, tactics, investigations, and paperwork. Instead, training should be longer (most law-enforcement training programs last just a few months) and include more academic elements focused on constitutional norms, mental-health and addiction awareness, and de-escalation. Reforming transparency means changing rules, contracts, and laws that prevent the public from meaningful oversight of police. This includes rules that prohibit decertification of police who are found guilty or liable for serious breaches of use-of-force policies. Additional states and municipalities must establish review boards with significant civilian membership that have the power to investigate, compel testimony, and make findings. Both of these categories of reform flow into and are important elements of the third: transforming police culture.
Culture is the product of training, tactics, oversight, and internal procedures. It is shaped by such seemingly trivial matters as uniforms—officers feel different, and interacts with those around them differently, if they are wearing police blues and not battle dress uniforms and body armor—and by such important factors as reducing the flow of cast-off military-grade equipment from the Pentagon to local police departments, which makes the local police look and, more important, act like an occupying force. Ultimately, the goal is to instill in police a sense that they are part of a profession, like medicine or law, that is marked by minimum entry requirements, continuing education, high professional standards, and external and internal accountability mechanisms.
Police cannot be alien to the communities in which they operate. The effective exercise of force in a democracy depends on the consent of the policed. Without that consent, the alternatives are oppression or anarchy, or both.
Finally, and most important from our perspective, civil society must recognize and reaffirm the fundamental conservative values that animated much of the country’s constitutional structure. As conservatives, we find it somewhat ironic that today’s defenders of state and local authority are frequent advocates for federal mandates. Meanwhile, those defending federal deployments today were supposedly devout federalists just a few years ago.
For ourselves, we prefer consistency. There is a reason that the federal government is one of limited powers. There is a reason that the Constitution identifies only three federal crimes. And there is a reason that, even today, federal criminal law is narrow and jurisdictionally constrained.
The Founders understood that policing authority should be closer to the citizenry and more directly responsive to local control. As James Madison put it in “Federalist No. 45”: “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [They are] numerous and indefinite.” By contrast, in order to prevent unaccountable authority from growing without limit, Madison assured us that the “powers delegated by the proposed Constitution to the federal government are few and defined.”
Perhaps Madison’s predictions have not proved completely accurate. But those concerns that animated him more than 200 years ago remain the same today. And that is why Americans should be gravely concerned with how President Trump has transformed federal authority. Forty years ago, President Ronald Reagan said that the nine most terrifying words in English language were “I’m from the government, and I’m here to help.”
Today he might revise that statement to, “We’re from the government, and we’re in charge—of everything.”