Requiring local visibility of federal agents
No secret police, please
How does the law work in everyday life if the U.S. federal legal system has been totally corrupted? The situation initially inspires a certain amount of despair. However, more careful consideration suggests that life might not be that different, at least if one lives in a jurisdiction that is uninterested in following the federal example (such as Massachusetts, where I live). One instructive example is the status of marijuana, which is legal in the state but illegal under federal law. We find ourselves in the domain of the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Indeed, we can think of this as an opportunity to continue an informal collective seminar on constitutional law, prompted by the antics of the 45th/47th president. Impeachment and emoluments have been some previous topics that made the transition from obscurity to mainstream discussion; now we can take up the question of the limits to federal supremacy. Of course, some aspects of this have been previously explored by disreputable people, for example in the white supremacist reaction to Brown vs. Board of Education. Despite that somewhat dubious precedent, it seems worth thinking through some of this.
I’m approaching this topic as a systems problem. Although I will try to be legally accurate where I understand the legal issues, it’s important to note explicitly that I Am Not A Lawyer, and This Is Not Legal Advice. Instead, I’m partly inspired by the memory of a long-ago video in which Alan Kay referenced the Federalist Papers as “the best systems design text written.” I haven’t found that exact video (yet?), but I did find a similar reference elsewhere. Kay’s point is that the Founders were concerned with systems issues: failure conditions, recovery, keeping the governance system out of bad arrangements (e.g., tyranny) despite failures. The systems issue here is related to fault-tolerance in a federated system: how a nominally subordinate entity continues to function when the nominally superior entity is operating unreliably.
Threat model
In the best tradition of cybersecurity, we can define a threat model and then consider possible defenses available against those threats. The merit of a threat model is that it makes our concerns explicit, and implicitly leaves out everything else. The world of possible threats is infinite, but defensive resources are always finite.
The following threats seem reasonably likely, based on recent events. Not all of these have happened, but many of them have, and the ones that haven’t happened seem adjacent to what has happened:
Targeted arrests
Mass deportation sweeps
Selective audits by the IRS
Failure to pay duly appropriated funds to state and local entities
Stochastic terrorism
Withdrawal of air traffic control
Declaring people “dead” via Social Security
These are all “cold war” kinds of threat. Although they involve lawless behavior by the federal government, and the threat of force to achieve compliance, they all have a veneer of justification. Although that justification is often transparently pretextual, there is nonetheless some perceived need for the Feds to cosplay at the rule of law: to supply a rationale that says, this is not really a rogue authoritarian government.
Left out of this model are “hot war” threats like blockades, air strikes, and ground invasions. Those threats are excluded because they seem unlikely compared to the included items, they would require very different analysis than the included items, and they seem harder to analyze or predict. They would also be incompatible with the current narrative that the federal government is basically behaving lawfully, and any complaints are rooted in political dissent. If the federal government declares war on Massachusetts (or vice-versa), this entire threat model falls apart.
The only easy prediction for a shooting war of some kind is that it wouldn’t be good for anyone. (Certainly, I wouldn’t want people in Massachusetts to think that they could somehow outmatch the firepower of the Feds; but I also suspect that the Feds might find Massachusetts tougher to subdue than they might wish.)
There’s too much in this threat model to cover it all in a single post, but we can start on the list. One important common problem is the unwanted presence of federal agents in the state: in particular, the problems of targeted arrests, mass deportation sweeps, or selective audits.
Local policing vs. misbehaving federal agents
If the problem is that federal officials come into the state and stir up mischief of one kind or another, what recourse does Massachusetts have? The primary observation is that the bulk of relevant criminal law, police powers, and jurisdiction lie with the state.
The US president may be personally immune from criminal prosecution, but he’s only one person. Realistically, any large-scale action will wind up being delegated to people who are not the president, and who accordingly have no immunity from prosecution. Of course, we can’t count on the federal Department of Justice or its Federal Bureau of Investigation to pursue them or prosecute those mischief-makers; but if some federal agent breaks state law, then the state will be able to investigate and prosecute. The president’s pardon powers are irrelevant to state offenses, so the president’s agents will not be able to assume that he can give them “get out of jail free” cards.
Although state authority usually defers to federal authority, there are sensible limits. Merely being a federal agent does not confer total immunity to state law, and federal agents cannot act with impunity: they cannot, for example, commit murder, steal, or refuse to pay their state taxes. The same basic principle applies to federal agents that applies to state agents, who are likewise limited in their powers. They may be lawfully empowered to commit violence and/or deprive people of their liberty, but only in certain well-defined situations and only while pursuing their official duties.
State law enforcement will need a shift of attitude, replacing the default deference to federal authority with a new set of phrases. Among those phrases are:
“show me the court order,”
“this is not your jurisdiction,”
“you don’t have that authority,” and
“you’re under arrest.”
That last phrase will be especially important: detaining federal agents, and forcing the full legal apparatus to grind through their release by proper processes, could have a substantial deterrent effect. Of course, there is a corresponding substantial likelihood that federal authorities would use any such incident as an opportunity to escalate their misbehaviors and interventions. Premature or overenthusiastic arrests would undercut the legal and moral arguments for state authority; it will be important to ensure that any such arrest(s) are highly defensible, especially the first one. Accordingly, it may be necessary to overlook some bad behavior in unclear circumstances.
Why federal agents hide
It is exactly a fear of this path to prosecution that probably explains the way that ICE agents currently prefer to operate, wearing masks and working in large groups. Masking is an attempt to avoid individual identification and consequent accountability, while working in large groups helps to ensure that it is too expensive or messy for the state to respond, even in situations that are legally dubious.
It is legitimate for federal authorities to resist attacks on federal agents as individual persons. It should be possible to distinguish between concern for a particular agent’s official actions and that person’s life outside their government role, and it is problematic to attack a person in their life outside their work, simply because they can be identified as an agent.
However, it is even more problematic to have entirely unidentifiable government agents – especially when they are in the business of snatching people off the streets and detaining them.
Visibility of federal powers
It seems entirely reasonable as a matter of public safety to legislate, at the state level, that federal agents must have clear and accurate identifiers, readily visible, when they are performing their duties within the state. Further, it would be sensible to legislate that any federal agent operating without such identifiers is not allowed to deprive people of their liberty or other constitutional rights. It is reasonable to assert that any such unidentified agent has no legitimate law enforcement powers; if they attempt to exercise powers of arrest or detainment, they are in fact engaged in kidnapping.
We can imagine a requirement to provide advance notification of intended entry to the state. Applied broadly, such a requirement would be both wildly impractical and clearly unconstitutional. However, requiring every federal agent to provide advance notification of entry into the state as a prerequisite for exercising their powers seems much more reasonable. It is more practical in terms of the smaller number of people involved, and it cleanly avoids concerns about civil liberties. Federal agents have extraordinary powers, and such a system would not infringe on those powers; instead, it would ensure that those powers are exercised legitimately, offering avenues for accountability that seem to be needed at present.
Obviously, this notification would not be simply about a person moving between states who happens to be a federal agent – rather, it would be advance notification of the intent or expectation of using federal powers within the state’s borders.
Implementation
It's not fun to think about the possible need to detain federal agents. However, it’s not clear that there is a viable alternative. Certainly, there is little appeal to pretending that nothing has changed and that the Feds can be trusted. The legal jargon here is “regular order,” summarizing the assumption that other parts of the legal system can be assumed to behave as they should unless there is evidence indicating otherwise. Continuing to assume regular order amounts to a preemptive surrender of the substantial local policing authority and capability that the state has.
These registration or notification requirements would require state legislation and/or emergency action by the governor, and would surely be controversial. Although it’s not clear it’s advisable, there would be a certain poetic justice to matching the president’s current style of “executive orders and emergency powers” on the state level. The governor could declare an emergency and implement limited measures to restrict the activities of certain federal agents or classes of federal agents in the state.
Challenging such practices would require time and resources by the federal government, which might itself be helpful. Importantly, simply raising the issue highlights the unacceptability of anonymous federal goon squads grabbing people off Massachusetts streets. If we think in terms of Timothy Snyder’s advice against tyranny, requiring visible federal power can be both a form of “not complying in advance,” and also a way of heading off the development of a federal secret police force.
It might be useful for the state to require some kind of mandatory uniform for duly-registered and empowered federal agents. If the federal government is unwilling to have its agents be clearly identifiable, the state can potentially require such clear identification itself – providing a conspicuous marker that the person is acting as a federal agent and thus potentially exercising federal powers. Of course, there could be exceptions for cases where the federal agent had to be inconspicuous, but it’s important that those exceptions be determined by the state legal apparatus, not by the Feds simply asserting a need.
It would likely be overkill to preemptively arrest every federal agent who shows up without making appropriate arrangements in advance, but it would (a) demonstrate resolve that the Feds don’t get to bully the states, and (b) be an example that “the best defense is a good offense.”
Would such identification solve the problem of rogue federal agents? No. But it would at least clearly establish a boundary between legal and illegal behavior with respect to state law, and offer a route to potential prosecution of unlawful activity by federal agents.