Gov. Larry Hogan recently responded to President Donald Trump’s threat to send federal law enforcement agents to Baltimore to deal with unrest. Hogan said only peaceful protests are happening in Baltimore and that he, “doesn’t know what they would do if they came because we have no protests like you are seeing in Portland, Chicago, New York, places like that.”
The governor misses the point entirely. The federal government can enforce federal laws, but it does not have the power to police protesters on city streets. Police powers belong in the hands of state and local officials and agencies. Federal authority must not be converted into the general police powers of the sort that are retained by the states.
This is because these powers are not delegated to the federal government and, according to the Tenth Amendment, they are reserved to the states. This principal of constitutional law was articulated by the United States Supreme Court in U.S. v. Lopez (1995).
True, the federal government does have the power to protect property owned or operated by the federal government, but in Baltimore such property has yet to be threatened. And if the scene in Portland is examined, federal agents are detaining protesters far from federal property.
While we are not suggesting that Hogan deploy the National Guard against these federal agents should they appear on our streets, we are calling for the governor to vigorously oppose this threat of armed federal agents in Baltimore and call upon the White House to abstain from this action.
It would also be effective, we think, for Hogan to call upon the nation’s governors to decry these acts of the White House and its Department of Homeland Security, whose agents are being deployed. And, maybe, serve as the catalyst for a multistate legal challenge of these constitutional violations.
Editorial Board members Arthur F. Fergenson, Nancy Forster, Stephen Z. Meehan and Debra G. Schubert and did not participate in this opinion.
EDITORIAL ADVISORY BOARD MEMBERS
James B. Astrachan, Chair
James K. Archibald
Arthur F. Fergenson
Julie C. Janofsky
Ericka N. King
Stephen Z. Meehan
C. William Michaels
Angela W. Russell
Debra G. Schubert
H. Mark Stichel
Vanessa Vescio (on leave)
The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.