"It Depends." Second Verse.
For those of you that read my articles you know that the answer to almost every question you will ask a lawyer is……wait for it………”it depends.” In fact, I think I took “It depends 1” and “It depends too” (see what I did there) as part of my core curriculum in law school.
The point that I am trying to make here is that the law is nuanced and there are very few bright line rules.
This was really brought home to me recently in a conversation I was having with my wife. We were watching the news which was showing a video of the Department of Homeland Security (“DHS”) forces in the city of Portland.
My wife asked me what seems to be a pretty straight forward question…..”[c]an the federal government use federal forces in cities.” I took a deep breath, slowly poured myself a drink, and then responded……”it depends.”
My wife, fully expecting this answer, poured herself a glass of wine and got comfortable as she prepared for my long winded explanation. Clearly not her first rodeo.
I took another deep breath and began….
In establishing the federal government with limited powers, the founding fathers did not include a general federal police power in the U.S. Constitution. That power is reserved to the states under the 10th Amendment.
However, under certain situations, federal law gives the federal government the right to send in federal forces. Specifically, this can occur to: (i) protect federal property; (ii) ensure that federal law is upheld; and (iii) enforce federal court orders. It also allows, the U.S. Department of Justices (DOJ) to monitor compliance with federal voting rights laws such as fraud and voter intimidation.
For those of you keeping score at home this should not come as a surprise.
Federal forces were used to intervene in the railroad strikes of 1877 and 1894. Remember those? Me either.
Federal forces were also used to enforce federal judge’s desegregation orders. Moreover, federal forces were used to assist local police with riots following the assassination of Dr. Martin Luther King in 1968.
More recently, federal forces were used to help police control the riots following the acquittal of several police officers for the beating of Rodney King.
This brings us back to the news and video my wife and I were watching. In this scenario, DHS said the use of federal forces were necessary to protect the federal court house. Not everyone liked this use of federal forces. In fact, a lawsuit was filed by the Oregon Attorney General to limit the federal forces activity. However this was denied by a federal judge. Although several other lawsuit remain related to alleged unconstitutional activity by the forces.
“Ok,” my wife said, “[b]ut what about having federal forces at polling places during an election? President Trump suggested there would be strong federal presence at polling places in November. He said there would be sheriffs, law enforcement and hopefully U.S. Attorneys. What about that?”
That, as they say, is a different matter.
Through the elections clause, the U.S. Constitution grants the power to the States to determine the “time, place, and manner” of federal elections. Even though Congress sets the date of federal elections its other federal power are limited. The DOJ can monitor compliance with federal voting laws and fraud and intimidation but that is about it.
Federal law prohibits any military or federal civil police from ordering “any troops of armed men at any place where a general or special election is held, unless such force is necessary to repel armed enemies of the United States.” Violation of this law carries a fine and up to five years in jail.
In other words, the President can’t order federal troops or civil police to monitor polling locations. That falls to the States to determine how, and if, polling places are monitored. Of course, state and local laws addressing this issue are all over the board.
For example, Pennsylvania police are required to remain at least 100 feet from a polling place unless summoned. New York City, on the other hand, requires that at least one police officer be assigned to each polling location. These law regulate the use of state or local law enforcement. Federal forces are not allowed (absent very limited circumstances).
So, to summarize, the Executive Branch has no authority to order federal forces to provide security beyond legal monitoring by the DOJ. Any violation of this would subject the official to federal and state criminal penalties.
After I said this, my wife finished her glass of wine, looked me in the eye and said “remind me to quit asking you legal questions.”
Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.
800-333-DRIVE (3748) or www.interstatetrucker.com