Federal police authority

Dear Readers, Our Constitution is premised on the concept that the sovereignty authority is divided between the federal government and the individual states.  The 10^th Amendment, the final one to our Bill of Rights, reserves all “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

States have the right and responsibility to keep their citizens safe.  They do this, principally, by chartering cities and counties, which then make policing decisions at the local level.  

The national government, in turn, has only limited police authority.  As originally envisioned, the Constitution tasked it with a criminal responsibility dealing with national defense.  Hence, investigating 9/11 was (correctly) principally tasked to the FBI, as our Founders originally envisioned.

Through and immediately after the Civil War, there was a great tension between federal and state authority.  The Southern States pushed a “States’ Rights” political theory to justify the preservation of their “peculiar” institution.  Reconstruction was an affront to state power, as the United States Army operated as an occupying force in the former Confederate states.

The tide turned in the first half of the 20^th Century, as memories of Reconstruction faded.  During the Progressive Era, muscular legislation was passed, granting federal power to enforce financial and food safety laws.  Prohibition was an extension of this trend, when the “Bureau of Prohibition,” housed in the Department of Justice, enforced our (unsuccessful) attempt to invoke a national ban on alcohol.  This subsequently sparked bootlegging and the growth of the mafia, later a task for the FBI to handle.  And, of course, we have the modern plague of drug trafficking, the DEA being our first federal line of defense.

The growth in the DOJ’s authority was the product of the Constitution’s “commerce clause” nestled in Article 1, Section 8, Clause 3 of the Constitution.  This grants Congress the power “to regulate commerce with foreign nations, among states, and with the Indian tribes.”  Premised on this, Congress passed laws “federalizing” a variety of crimes from drugs, to guns, to bank robberies, to child trafficking.  What is required is some element of interstate or cross-state commerce.

This leaves us with “concurrent” criminal jurisdiction.  Possession of cocaine is a violation of Georgia statutes, investigated by local authorities, but the DEA can partner with them to have a Federal Complaint or Indictment dropped.  Relatively “small-fry” offenders will be prosecuted locally, while“bigger fish” are poached by the DEA.

This illustrates the different character of local and federal policing.  “Street crime” is essentially the purview of local law enforcement and federal agencies bring money and resources to broader investigations.

Federal agencies certainly recruit from state law enforcement, but training and tasking are different for them.  Police are trained in traffic stops, de-escalating domestic violence conflicts, and street-level robberies and shootings; federal officers are trained in things more like hostage negotiation, running investigations, and computer and financial crimes.  While there is some overlap, we generally benefit from them “staying in their respective lanes.”

This is true even in the one situs of exclusive federal presence – Washington, D.C..  In the District, under the authority of its Police Chief, appointed by the Mayor, the police department operates like in any other medium-sized city.  Its officers, although employed federally, engage in the same sort of policing we see locally; other federal agents have their typical complementary role.

President Trump has ordered National Guard troops, who are for the most part not trained in any type of policing role, to patrol the streets of Washington, D.C..  As a security presence, supplementing a police presence with more “boots on the ground,” this can be a crime deterrent.  The same is true if a Governor activates the National Guard to combat crime in an individual state.  But, to really reduce crime, patrols have to be strategically deployed (which they are not) in high-crime areas and neighborhoods.

Our President is telegraphing a darker agenda, he is threatening to do the same in other “blue” locales.  If he does so, nationalizing crime prevention, he will undermine the very foundation of the Constitution enshrined in the 10^th Amendment.  This is a bright line that should not be breached.  

We elect officials and demand accountability from them.  We demand they keep us safe, or we vote them out of office.  That is about local control.  This is what our Constitution guarantees.  This right we cannot allow to be hijacked by any national politician, or our national experiment will be terminated.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.