Constitution Law Tuesday – June 2nd

Constitutional law was one of my favorite subjects in law school and it is exciting when it comes up in current events. I just read an article about an issue of US Constitutional Law that deals with the ongoing riots and the Constitutional tension between the power of each state government versus the federal government. The question is whether our President has the power to federalize the National Guard to quell riots. And a related question is whether he needs the permission of the Governor of a state to bring troops into that state.It turns out that our President does have the power to use troops within the United States under the Insurrection Act of 1807, which was last used to quell the riots from the Rodney King incident in California. The California State Governor requested federal help in that case. The trickier question is whether the federal government can assert police power in a state where the Governor has not asked for such help or even rejects federal intervention. That appears to be a possibility in the current crisis, as several state Governors have expressed that they will not approve the federalization of their state’s national guard. The issue implicates the old debate between States’ rights vs. Federal power that we saw debated in the Federalist Papers. General police power typically belongs to the states, and not the federal government. The tenth amendment to our Constitution expressly reserves to the states all powers not granted to the Federal government by the Constitution, including police power. However, Presidents Eisenhower, Kennedy, and Johnson all employed the National Guard and federal police power to implement and enforce desegregation in the South and civil rights laws. That federal power was asserted in opposition to the will of the state Governors and without their consent. The question, then, is whether the current crisis implicates civil rights. Ironically, a progressive theory of Constitutional interpretation may actually provide the grounds for federal intervention in this crisis based on civil rights violations. One theory to justify federal intervention is based on the fact that these riots are disproportionately impacting minority businesses and citizens in at-risk neighborhoods. Under that theory, it could be argued that the riots are having a disparate impact on minorities, depriving them of substantive due process and equal protection under the law. Civil rights statutes may also be implicated. Failure to protect people and their property in the affected neighborhoods constitutes a clear violation of their civil rights because there is a disparate impact on a discrete and insular minority group, which could justify federal intervention by the national guard, just as Eisenhower ordered the 101st Airborne into Arkansas to enforce court ordered desegregation.This justification for federal action to quell widespread riots is not without its drawbacks. Every occasion involving the assumption of federal power over the objections of states partakes in a constitutional crisis, or smoldering Constitutional debate, which has been playing out in a long line of acts and legal decisions since our founding forefathers declared independence from the Crown. We may be witnessing the latest round of that debate.