Alternative headline: Bill de Blasio enjoys new hobby of losing in court. Earlier this morning, the mayor threatened to sue if Donald Trump used federal law enforcement in New York City. On MSNBC’s Morning Joe, de Blasio specifically cited DHS action in Portland in claiming that Trump is “tearing up the Constitution,” and that he’d sue to stop a similar action in the Big Apple:
MAYOR DE BLASIO: I still believe in the rule of law in this country, and we would go to court immediately. I believe what the president is doing is unconstitutional. I thought that quote from Tom Ridge was really important to recognize this is not the place of federal agencies to get involved in repressing the right to free speech, disrupting the right to protest, which is an American right. …
MAYOR DE BLASIO: So right now what the President is doing is he’s tearing up the Constitution. What he did in Portland is already a horrible step in the wrong direction, and it’s been counterproductive. It’s created more violence, more harm, more protest. So in the end, if one of these federal officers steps foot in New York City with the intention of denying the first amendment rights of New Yorkers, we will be in court immediately. And we will win because every time they’ve tried an unconstitutional act, every time the Trump administration has tried to bend the Constitution to their will, they have lost in court. And mayors all over the country feel it.
De Blasio made the same vow yesterday in his daily briefing:
The mayor blasted Trump’s threat as “bluster” at his daily press briefing.
“If he tried to do it, it would only create more problems,” the mayor said. “We would immediately take action in court to stop it.”
De Blasio later added, “I do believe it’s bluster. I do believe we can beat him in court. It would just create a lot of pain and confusion. Maybe that’s what he wants.”
On Monday, Trump called on Gov. Andrew Cuomo to end the recent crime spree in the Big Apple, saying, “if the governor is not going to do something about it, we’ll do something about it.”
Trump also floated the idea of sending in federal law enforcement officers — like he did last week in response to violent protests in Portland, Oregon. Officials there have said the presence of federal agents has only exacerbated the riots, which have been raging for more than 50 nights.
I don’t think that it “exacerbated” anything after almost two months of violence. It might have made Portland officials a little more uncomfortable in the national spotlight, exacerbating their political peril, which is not at all the same thing. De Blasio might want to prevent the same thing from happening with this threat, but it would be more effective to simply enforce the law up front so that the administration doesn’t have to take additional action to protect federal property.
One might think that the embarrassing loss in court over unconstitutional and arbitrary restrictions on religious expression would keep de Blasio from accusing anyone else of “tearing up the Constitution.” No such luck, and as Jonathan Turley wrote yesterday, de Blasio may be teeing up another such embarrassment. While there is no constitutional role for the federal government in normal municipal policing, Turley points out the obvious jurisdiction it has over its own property no matter where it’s located:
What [Trump] can clearly do is what he did in Portland. Send in federal forces to protect federal buildings and arrest those who commit federal offenses. That can lead to an expanding presence. As more protesters respond to the federal presence, the federal forces can be expanded at their discretion to meet that challenge. It can become a cause-and-effect controversy like the one being raised in Portland. However, a judge who orders the federal forces reduced or out of the city would face a rapid appeal and reversal in my view.
That type of deployment to protect federal enclaves and buildings can be done without any special proclamations or orders. It is part of the inherent authority vested in the federal government. Indeed, it does not even require a special executive order. The Attorney General or Secretary of Homeland Security may deployed federal officials to protect buildings, support law enforcement activities, or carry out arrests. These are not military troops, but law enforcement personnel being assigned law enforcement duties.
Being law enforcement, however, Turley reminds readers that they have to obey normal law-enforcement restrictions:
There should be an investigation into the conduct of the federal officers to confirm the basis for these arrests and how these individuals were treated while in federal custody. It is not per se unlawful to use unmarked cars for arrests. Indeed, it happens all the time. However, local officials and protesters are alleging that people have been effectively snatched off the streets and taken away blindfolded — only to be released hours later. The federal officials deny these allegations and insist that these were individual suspects taken into custody on specific alleged federal crimes. They also note that the officers were clearly marked as police and insist that they told the suspects who they were.
Those issues can create case-by-case challenges, just as it would if municipal police acted in the same manner. However, Trump and the federal executive branch has clear authority and jurisdiction to send its own personnel to enforce the law and protect property on federal grounds. Suing Trump makes for great “bluster,” a quality de Blasio accuses Trump of having, but it will go nowhere.
Rather than looking for new ways of losing in federal court, shouldn’t mayors look for new ways to enforce the law and keep the peace in their cities? That way, federal agencies won’t have to deploy to protect their facilities in those cities, and the mayors won’t have to worry about them. Problem solved, although it does mean that de Blasio will have to do his job rather than emote all over the television screen while his city burns, another of his favorite hobbies.