On Tuesday, President Trump signed an executive order to address police reform in the United States, continuing a long history of unconstitutional federal meddling with state and local police.
The EO titled “Safe Policing for Safe Communities,” orders the creation of a federal database to track police officers with multiple cases of misconduct. It also allocates federal funds for a national credentialing system to incentivize police forces to meet higher certification standards on the use of force.
Meanwhile, Senate Republicans are drafting a police reform package of their own. Provisions reportedly include a ban on certain chokehold and expanded use of police body cameras. There are also calls to end or limit qualified immunity for police officers, a legal doctrine invented by federal courts that legally shields police from being held accountable for misconduct.
Trump’s executive order comes as no surprise, given the calls for police reforms in the wake of Geroge Floyd’s death at the hands of Minneapolis police officers. Trump finds himself under tremendous pressure to “do something.”
But the president doesn’t have the constitutional authority to do anything about state and local policing. The Constitution does not delegate any such authority to the federal government – not to Congress and certainly not to the president.
During the ratification debates, police powers were specifically singled out as the sole purview of the states. Tench Coxe was an influential supporter of the Constitution. In one of his essays advocating for ratification, he specifically listed “erecting or regulating the police of cities, towns or boroughs” as actions off-limits to the federal government.
Nevertheless, the federal government has increasingly meddled with state and local law enforcement over the last several decades. In fact, the federalization of policing created many of the problems we face today.
The money and power that flows into local police departments from Washington D.C. incentives police to focus on “national” priorities such as the “war on drugs,” federal gun control and “anti-terrorism” efforts instead of prioritizing more routine local policing such as murder, rape and property crime. The unconstitutional “war on drugs” has also led to the militarization of law enforcement and the increase in police violence.
Trump wants to incentivize police to meet some nebulous federal standards on police violence, but federal incentives don’t have a great track record. Federal asset forfeiture has incentivized “policing for profit” where cops take innocent people’s stuff in order to fill department budget holes. Federal military surplus programs like 1033 incentivize local cops to arm up and march around like soldiers. And the proliferation of joint police task forces.
There is no reason to believe further centralization of law enforcement at the federal level will solve the problems facing police today. In fact, history should lead us to believe centralization will make it worse.
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