We’re seeing lots of news today about the occupation of Washington, D.C. and the president’s takeover of the Metropolitan (D.C.) Police Department, as well as clear signals that he plans to expand this program to other big blue-state cities. I want to step back from the particulars to try to see the situation as a whole and consider the political ways to react to it. This builds on the point that grew out of my conservation with a TPM Reader a week and a half ago which is that the narrow issues of legality are mostly beside the point — not irrelevant, but at best secondary. The president views states and municipalities controlled by political opponents as something akin to conquered territories which must be bent to his will by force. This includes budgetary coercion and as close as he can get to military occupation. This is un-American, outside the constitutional order and, not least in importance, unpopular.
He has done this by exploiting various loopholes, taking advantage of a compliant and corrupt Supreme Court and resorting to expedients in which his power is most un-reviewable despite his actions clearly violating the plain intention of the laws in question. None of these technicalities change the fact that these are all violations of the liberties Americans are entitled to.
The 3rd Amendment to the federal Constitution reads: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” It is commonly understood to be the least litigated of the Bill of Rights, and as far as I know it has never been the basis of a Supreme Court ruling. At least as of yet, this Amendment has not been violated directly. But there is an import to the words beyond their specific prohibition. American civilians, in their lives and their property, are not the subjects of the government of the day. Nor do they live on territory under effective occupation by the federal government of the day. This is highly relevant today because in every particular, the president is trying to turn this on its head. And this opposition to the military as a tool of law enforcement or coercion over civilians is deeply embedded in American political culture.
This is one of the many reasons why every poll shows these moves toward military occupation of American cities is deeply unpopular. This is even the case as it is justified by the need to enforce immigration laws (an issue on which the president re-entered office with strong public approval) and to fight crime (a topic on which there is still substantial public anxiety, despite ample evidence of falling crime rates). Americans don’t like seeing soldiers (and National Guard members are soldiers) deployed in areas where they are not welcome or over the objection of civil authorities. They only find it acceptable in extraordinary cases of natural disasters or cases where civil authority has manifestly broken down. This is not my opinion. Look at every poll from this summer which looks at either National Guard or military deployments.
Under the American constitutional order, states and localities are entitled to local control of civil policing, administration of elections and various other features of state and local government. President Trump is trying to upend that part of the federal order not because he thinks he can run this or that local government service or administration any better, but to deprive those states and localities of their liberty and right to self-government. Because he wants that power for himself.
I’m making these general points because the opposition to these actions is deeply embedded in American civic culture — citizens’ basic understanding of what they’re entitled to and what they think is right. So shaping political actions explicitly around opposition to it is not only right and merited but the basis of opposition with the best shot at success. Whether one thing or another violates the Posse Comitatus Act is good for lawyers to know for the purposes of wrenching whatever minimum is possible out of a corrupted judiciary. But it’s not the basis of any opposition. And in political terms it’s basically a distraction. Most Americans intuitively know this isn’t the deal on which our government is based and they don’t like it. Again, it’s deeply woven into the fabric of the country’s civic tradition. It wouldn’t become fine just become some dork at the Claremont Institute came up with some over-clever interpretation of law or the Constitution that made it fine. All that is beside the point.
In this sense Trump and his degenerate advisors are doing us a favor by making face masks a part of the standard ICE and CBP uniform. It marks them out as something different. They’re not soldiers precisely. But they are occupiers. They function in the same way. Masks are for secret police and criminal gangs. They have no place in any kind of legitimate policing authority.
These are all the makings of a powerful opposition politics and Democrats must not run away from it. It’s not only critical to the future of American democracy and civic freedom. It could not be more mainstream, something that appeals to a broad range of the American electorate, across race and ethnicities, regions and ideologies.