Declaring his intent to “dominate” protestors exercising their First Amendment rights, Donald Trump has spent much of July sending federal paramilitaries into Portland, Oregon ostensibly to guard government buildings.
Dressed in camouflage, as if for combat, Homeland Security and repurposed border patrol officers armed with tear gas, batons and other riot gear, ventured far from the government buildings they were seemingly sent to protect to accost and arrest dozens of the overwhelmingly peaceful protestors who had gathered in the country’s 26th largest city every day since May 25th when a police officer in Minneapolis murdered George Floyd, a 46-year-old black man, during an arrest for allegedly using a counterfeit bill.
Yet Republicans, who have long preached the sanctity of “states rights,” have been conspicuously silent.
In fact, apart from Tennessee Sen. Rand Paul, Republicans have applauded the crackdown despite chilling videos showing the heavily armed officers pulling protesters into unmarked vans and arresting them without warrants or probable cause. No matter that many of those taken into custody, Vox reported, hadn’t clearly violated any laws. A Portland attorney who had joined a “Wall of Moms” protest in support of Black Lives Matter reported being groped and assaulted by a U.S. Marshall who arrested her.
At a different time during a different administration, self-described conservatives might be vigorously condemning federal troops being sent covertly into a state where the governor had expressly rejected their entry. Had a Democratic administration sent U.S. Homeland Security paramilitary officers to Portland, Republicans might be patrolling the city’s streets waving “Don’t Tread on Me” flags while party leaders took to Fox News to talk up the 10th Amendment.
But there is little mention from Republicans about the 10th Amendment, which affords states a strong dose of autonomy, or Ronald Reagan’s “New Federalism,” the overarching initiative that the increasingly libertarian party has used for 40 years to rationalize the federal government’s retreat from the progressive social policies and economic programs that fueled the -class expansion following World War II and solidified the gains of the civil rights movement.
Time was when Republicans really did talk up “state’s rights.”
Back in the winter of 1963, Alabama Gov. George Wallace embraced that very battle cry when he stood on the steps of the University of Alabama flanked by state troopers to refuse entry to two Alabama-born black students, Vivian Malone and James A. Hood. When JFK threatened to send 100 members of the Alabama National Guard to Tuscaloosa to allow Malone and Hood to enroll, Wallace backed down contending that he was only defending the right of the state’s legislature to govern without federal interference.
JFK, for his part, was enforcing the Supreme Court’s 1954 decision in Brown v. Board of Education, Topeka, Kansas, which ordered lower courts to overturn state and local laws that mandated segregation (citing the 14th Amendment.) The Brown decision prompted a flurry of legislation in southern states that denounced the court order as an “illegal encroachment” on state’s rights, declaring it “null, void and of no effect.”
The backlash against Brown was led by South Carolina Sen. Strom Thurmond, the state’s former governor who just six years earlier had run for president under the States Rights Democratic Party. Known historically as the Dixiecrats, Thurmond’s party was launched to oppose Democratic President Harry S. Truman’s 1948 presidential order to desegregate the U.S. military.
Republican embrace of state’s rights was given its more modern imprimatur when Reagan visited the Neshoba County (Mississippi) Fair in August 1980 immediately after becoming the party’s presidential nominee. In a speech delivered a short distance from where three civil rights workers were murdered by local Klansmen, Reagan made clear that he aimed to rewrite the role of the federal government.
In recent years, Republicans successfully challenged Congress’ 2009 effort to apply the 1967 Age Discrimination Act to state employers, and in 2000, to prevent the 1994 Violence Against Women Act from also being applied to the states. When it comes to the right to vote, Republican Sen. Mitch McConnell (KY), the majority leader, staunchly defends the right of state legislatures to prescribe “quote – the time, places and manner of holding elections” to justify the Kentucky legislature’s decision to block state residents from voting on an amendment that would restore voting rights to felons.
Yet Republican hypocrisy on state’s rights didn’t suddenly emerge in Portland. It was manifest in the party’s recent opposition to state laws allowing for the purchase of small quantities of marijuana as well as the efforts of California and other states to toughen laws over auto emissions.
Republican’s selective application of Reagan’s “New Federalism” wasn’t lost on Oregon Sen. Ron Wyden who asked in an interview with Business Insider, “Where are the Senate Republicans who preach ‘state rights’ and freedoms as Trump sends paramilitary forces into cities uninvited and tramples on the Constitution?”
The illegality of Trump’s use of Homeland Security officers to harass protestors, though, cuts across more than just the 10th Amendment. In Trump’s own ranting executive order, the authoritarian-inspired real estate developer singled out “anarchists and left-wing extremists,” a blatant show of viewpoint discrimination that clearly violates a century of Supreme Court rulings shaping the modern interpretation of the First Amendment.
Ironically, most of the arrests in Portland were for assaults on federal officers or failing to comply with law enforcement commands rather than the desecration of federal buildings. In other words, “their presence here escalates,” the situation,” said Oregon Gov. Kate Brown. “It throws gasoline on the fire.”
As anyone but the most hardened Fox News viewer can appreciate, the crackdown in Portland isn’t about “fighting crime” or cooling public anger over the Floyd murder, it’s for domestic consumption. It’s intended to divert public exasperation away from the Trump Administration’s tragic mishandling of the federal response to the Covid-19 pandemic.
A great deal of litigation is certain to follow. Laurence Tribe, professor of Constitutional Law Emeritus at Harvard Law School, boiled it down when her wrote that the “deployment of this clandestine force, answerable only to the president, is manifestly unconstitutional. Our federalist system prohibits the federal government from policing the streets where, as here, state and local authorities are equipped to preserve domestic tranquility and have not been demonstrably overwhelmed.”
There is no doubt that the 10th Amendment clears out space for state’s rights. Indeed, the right of Portland and Oregon officials to police their own street without federal intervention fits snugly into the U.S. Constitution.