It's Time to Crush the New Rebellion Against Constitution
Jonathan Karl of ABC News asked an interesting question of White House Press Secretary Kayleigh McEnany at last Tuesday’s press briefing:
“Where in the Constitution does the president derive the authority to send federal law enforcement officers to the streets of American cities against the will of the elected officials in those cities?”
McEnany, as it turned out, was prepared. Section 1315 of Title 40 of the U.S. Code, she explained, “gives DHS the ability to deputize officers in any department or agency like ICE, Custom and Border Patrol and Secret Service … for the duties in connection with the protection of property owned or occupied by the federal government.”
She added, “When a federal courthouse is being lit on fire, commercial fireworks being shot at it [and] being shot at the officers, I think that falls pretty well within the limits of 40 U.S. Code 1315.”
Since violent thugs have targeted the federal courthouse in Portland, Ore., it was an appropriate response, but it didn’t directly answer Karl’s question, which asked about constitutional authority for the use of federal force. It is a question worth asking, in part because there are many urban areas in the United States currently under similar attack but where no federal property is involved.
I’m not sure if Karl thinks President Lincoln’s use of federal force was justified when it was used to put down the rebellion in not just a few riotous cities, but across the entire South, but I do know for a fact that the United States Army was there “against the will of the elected officials” in those cities and states.
Presidential adviser Stephen Miller, appearing on “Tucker Carlson Tonight” last Thursday, claimed that the current insurrection is not an aberration, but an echo of that earlier Civil War begun by earlier Democrats who rejected the power of the federal government.
“The Democratic Party for a long time historically has been the party of secession,” Miller said. “What you’re seeing today is the Democratic Party returning to its roots. These are mayors and governors that are saying the federal law -- the U.S. Constitution -- doesn’t apply within the confines of our cities, and our citizens will be held at the mercy of the mob, and the administration of justice, the federal courthouse will be allowed to fall under siege, and that’s what’s happening right now in Portland.”
Taking a cue from Miller’s historical analogy, President Trump could learn from the example of our 16th president. Abraham Lincoln had a reputation for taking bold action to preserve the Union, sometimes skirting the Constitution, but there was never any doubt where his allegiance lay. He was dedicated to his oath of office, which had him declare publicly that he would “to the best of my ability, preserve, protect and defend the Constitution of the United States.” In the face of secession by the Southern states, Lincoln decided that preserving the Constitution was worth bending it a little. Lincoln’s suspension of habeas corpus is still debated, and it provides some insight into the use of federal police powers today to quell unrest.
Article I, Section 9 of the Constitution provides that “The Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it.” That provision protects against unlawful imprisonment, but it also makes a specific exemption involving rebellion and public safety.
The mayor of Atlanta in 1864 objected passionately to Gen. William Tecumseh Sherman’s invasion just as Mayor Ted Wheeler has strenuously objected to the federal officers trying to restore law and order in Portland. But in both cases they would have been wrong to say the Constitution does not provide authority for the president to act. And although the provision to suspend habeas corpus is found in Article I, which is dedicated to legislative powers, there is no reference to the legislature in this specific provision. Insofar as the president is designated as the commander in chief, it is therefore reasonable to assume that he — not Congress — shall be expected to act during a crisis of “rebellion or invasion” to restore public safety.
Nor is Article I the only provision that empowers the president to act. The Constitution guarantees citizens of the United States certain civil rights, including the right of free speech and the right to peaceably assemble. Those rights are being impeded by the far-left mobs rioting in Portland, Seattle and other cities, as well as by the lawlessness that has been spawned in many urban areas by defunding or decommissioning police.
Rep. Andy Biggs of Arizona spoke forcefully on this issue last week when appearing on “Lou Dobbs Tonight”:
“This is not peaceful protesting. … This is rioting, this is looting, this is criminal behavior, and in some instances … [it] is being done for purposes of undermining civil order. It is almost treasonous if you look at it that way. … This is gonna cascade. Rights are being abrogated and it's basically all being done not for enhancement of rights, but actually to take away rights and burn down the system of government that we have built, the economic system and the societal system that makes us Americans.”
Biggs said President Trump was entirely justified in sending in federal law enforcement to protect the constitutional rights of U.S. citizens, summing it up this way: “In order to fully implement and enjoy liberty, you have to be able to exercise your rights. These people who live in these cities are not able to exercise their rights.”
Bingo — and depriving people of their civil rights has been a federal crime for well over a century, at least since the 14th Amendment was adopted in 1868. Moreover, Section 241 of U.S. Code Title 18, Chapter 13, makes it a crime for “two or more persons [to] conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
It is about time for the Justice Department to recognize that the coordination of thousands of antifa and BLM rioters across multiple cities is indeed just such a conspiracy. One could also make the case that city councils and mayors who refuse to put down violence for any reason are conspiring to “oppress” citizens who wish to enjoy their right to conduct lawful business, to assemble and to speak freely. If Chicago’s leadership permits gun violence to take the lives of dozens of people every month, for instance, then the president has an obligation to step in to protect civil rights.
He is authorized to do so by the Insurrection Act of 1807, and more specifically by Title 10, Chapter 13, Section 252 of the current U.S. Code:
“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
This provision is based on Article IV of the Constitution, which says in Section 4 that “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
The “republican form of government” referred to means government of the people, by the people and for the people — not the mob, but all the people, making decisions for themselves in a democratic way where everyone’s rights are respected. Article IV anticipates that the leadership of the states will be working for “the people,” not for the mob, and will ask the federal government for help in restoring order, but that raises the question of what happens when the governor, the legislature, or perhaps the mayor and city council have joined forces with the mob.
What recourse then do the people have? Should they submit themselves to lawlessness? And what aid can the federal government provide to those who have the misfortune to be citizens of such a rogue state?
It seems that the primary purpose of Article IV, Section 4, is the guarantee of a free government that protects the rights of the people. Should the people be held hostage by a secessionist legislature, such as occurred during the Civil War, or by an insurrectionist city council such as we find in Seattle and Portland, then is the president really supposed to wait for the outlaw legislature to call for help?
I think not. It is time for President Trump to reassert federal power in the runaway cities that have rejected the Constitution. It is time to put an end to lawlessness. It is time to “insure domestic tranquility … promote the general welfare, and secure the blessings of liberty,” as the authors of the Constitution promised. It is time to act.