Liberal Professor: The Feds Have Every Right to Defend Federal Property

If you've been following the nearly two consecutive months of nightly violent upheaval and rioting in Portland, Oregon, you're already aware that the city's alleged "leadership" is unable or unwilling to put an end to it.  The Department of Homeland Security has now entered the fray, taking action and making arrests.  Allahpundit has outlined some of the constitutional and other concerns about this action, highlighting one confrontation in which federal officers appeared to brutalize a protester.  There are also debates underway about what sort of uniforms federal officers should or should not be wearing.  Many elected Democrats are acting horrified and indignant over the federal intervention -- some are expressing far more outrage at what they say are excessive efforts to restore law and order than they ever have at the violent rioting itself -- with libertarian-leaning conservatives like Sen. Rand Paul largely agreeing:

We cannot give up liberty for security. Local law enforcement can and should be handling these situations in our cities but there is no place for federal troops or unidentified federal agents rounding people up at will. https://t.co/vkSHmlOzDW

— Senator Rand Paul (@RandPaul) July 20, 2020

Here's Joe Biden weighing in on the chaos:

On Tuesday, Joe Biden accused federal law enforcement of "brutally attacking peaceful protesters" around the federal courthouse in Portland. Federal officers are operating "without a clearly defined mandate or authority," Biden said in a statement, adding that the White House is "trying to stoke the fires of division in this country." ... "What Joe Biden calls 'peaceful protestors' are actually left-wing anarchists who are assaulting police officers in Portland and, incredibly, Biden is siding with the criminals," the Trump campaign responded. "These 'peaceful protesters' are using lasers to target officers' eyes, shooting ball bearings with slingshots, using pellet guns and air rifles, launching fireworks at the officers, and barricading police inside a federal courthouse."

Here are some snapshots of the "peaceful protests:"

Rioters carrying shields rush back to the Portland federal courthouse after law enforcement return inside. Rioters cheer and celebrate, claiming it to be a battle victory. #PortlandRiots #antifa pic.twitter.com/UORcZiuOBW

— Andy Ngô (@MrAndyNgo) July 22, 2020

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Antifa black bloc militant beats up BLM supporting photographer @MasonLakePhoto. Mason Lake was accused of communicating with Portland Police and a bounty had been put on him on social media by #antifa. #PortlandRiots pic.twitter.com/pwvtWMpUeC

— Andy Ngô (@MrAndyNgo) July 22, 2020

Antifa black bloc tear off the plywood protective barrier to the Portland federal courthouse. They’re trying to break the glass underneath to set the interior on fire. #PortlandRiots pic.twitter.com/00aFGkf1dF

— Andy Ngô (@MrAndyNgo) July 22, 2020

Antifa rioters are reportedly attempting to make their actions look more mainstream by claiming that Oregon mother have joined their ranks in opposition to the federal presence.  At least in some cases, it very much looks like a PR ruse to spoon-feed compliant media.  Heterodox liberal law professor Jonathan Turley writes that the executive branch does have the right to defend federal property like the besieged federal courthouse in Portland:

Federal enforcement is not "by invitation only." The use of federal agents to protect federal property or enforce federal law does not depend on local permission. There may be legitimate questions on how that authority is used but not the right to use the authority.

— Jonathan Turley (@JonathanTurley) July 21, 2020

Cities like Portland have demanded that federal officers leave the city and stop making arrest[s].  While there are legitimate questions raised about the conduct of federal officers in putting people into custody and the use of force in Portland, those concerns related to the use of federal powers, not the basis for those powers. The federal government has full authority to protect federal buildings and to carry out arrests for federal crimes in any city. Current reports coming out of the White House appear to refer to surging law enforcement personnel, not sending military personnel.  That would be constitutional if used for protect federal assets or enforce federal laws.

Turley also warns against excessive force and overreach, and concludes that in his view, "a massive deployment of troops would be a mistake" because "state and local officials have the primary responsibility to address crime in the streets."  I tend to agree, and think federal intervention should be narrow in scope.  If local and state officials don't want to stop endless melees, they can make that choice and try to defend the results.  But that doesn't mean that the feds have to sit on their hands while mobs try to burn down federal buildings.  Former federal prosecutor Andy McCarthy contends that "in Portland, federal agents are faithfully executing our nation’s laws," adding that unlike the debate over sending the military into states or cities, "law enforcement is a completely different matter. Enforcing federal law is an independent obligation of the chief executive. Consequently, the president and the Justice Department never have to wait for a state to ask for federal intervention."  After running through the selective high dudgeon of various elected Democrats, National Review's Rich Lowry lays out what's happening:

Although the federal courthouse has done nothing to provoke protesters and has been standing at the same spot since 1997, it has been a constant target. Protesters have smashed its glass doors, covered its exterior with graffiti, and repeatedly attempted to light it on fire. This has been happening since at least early July. True to form, protesters over the weekend took down fencing and lit a fire at the building’s entryway. As a statement from the Portland police put it, “dozens of people with shields, helmets, gas masks, umbrellas, bats, and hockey sticks approached the doors” of the courthouse — but surely it was just a misunderstanding that led the federal officers to believe they had to repulse them with tear gas. This isn’t hard: It is the people attacking federal property who bear moral responsibility for what’s happening in Portland. In all the cities around the country where nihilistic mobs aren’t trying to burn down symbols of our justice system, there’s no enhanced presence of federal officers. 

The feds haven’t been wearing badges with their names and have been using unmarked cars — for fear of retaliation against the officers involved and mob actions against vehicles. Both are unquestionably legal tactics. According to DHS, the officers are wearing the insignias of their agencies and unique identifiers; they are arresting only people suspected of involvement of attacks on federal property; and they are identifying themselves to arrestees, although not to crowds. Perhaps these officers should be more clearly identified, but there’s no case whatsoever for calling them, as House Speaker Nancy Pelosi has, “stormtroopers” who are “kidnapping protesters.” ... It would be one thing if municipal authorities in Portland could legitimately claim that they have things under control. They don’t. The mobs have been clashing with the local cops for months. This longstanding riot is a stark commentary on the misgovernance of Mayor Wheeler, who is better at insulting federal law enforcement than doing his job.