In the same week in which President Donald Trump announced that he was federalizing 200 Oregon National Guard soldiers and dispatching them to the streets of Portland, he quietly signed a Presidential National Security Memorandum that purports to federalize policing. The Memorandum, just like the federalization of troops in Oregon, completely disregards constitutional safeguards against such practices.
Here is the backstory.
When James Madison and his colleagues crafted the Constitution and shortly thereafter the Bill of Rights, they intentionally created a limited federal government. They confined the federal government to the 16 discrete powers granted to Congress. Those powers identify areas of governance uniquely federal. Conspicuously and intentionally absent is public safety. To clarify this, the 10th Amendment articulates the reservation by the states of powers not granted to the feds. This relationship is called federalism.
Constitutional scholars often refer to the powers retained by the states as the police power. The use of the word “police” here doesn’t mean police officers on the streets. It means the inherent and never-delegated-away powers of the states to govern for the health, safety, welfare and morality of all persons in those states.
In his famous Bank Speech, in which Madison argued brilliantly but unsuccessfully for a textualist understanding of the Constitution — he was opposing the creation of the First National Bank of the United States essentially because it was not authorized by the Constitution — he laid out the principles of limited government. He reminded those in Congress who had just sent the proposed Bill of Rights to the states for ratification that they did not constitute a general legislature that can right any wrong or regulate any behavior or intrude upon any relationship. Rather, their powers were limited to federal matters.
Merely because an area of governance is reflected nationally does not make the area federal. Chief among these is the police power.
Hellbound and Down 