You can file this under the heading of “it’s foolish to expect the federal courts to protect your rights.”

Last month, federal agents poured into Portland, Oregon, and initiated police actions against protesters.

Vox described the situation in Portland.

Multiple reports and videos clearly show heavily armed federal law enforcement officers dressed in camouflage stepping out of unmarked civilian vans and forcibly detaining anti-racism and anti-police brutality demonstrators on the streets of Portland, often far away from any federal property (where federal officials have jurisdiction). In many instances, those taken into custody hadn’t clearly violated any laws.

The prime complaints levied against the actions of these federal agents revolve around their secretive nature and random arrests without warrants. In a lawsuit filed against the federal government, Mark Pettibone testifies that he was confronted by armed men dressed in camouflage, pushed into a van, placed in a cell and read his Miranda rights. He was released without any paperwork or record of his arrest, according to the suit.

The Trump administration acknowledged that the Department of Homeland Security dispatched federal agents to the city to “protect federal property.”

The Constitution delegates the federal government virtually no police powers. Federal agents can protect federal property, but according to numerous reports, federal officers were operating blocks away from the federal courthouse they were supposedly tasked to protect.

Oregon Attorney General Ellen Rosenblum sued the federal government on behalf of the people of Oregon. The suit claimed federal agents arrested people without probable cause and used excessive force. She sought a temporary restraining order to “immediately stop federal authorities from unlawfully detaining Oregonians.”

U.S. District Judge Michael Mosman acknowledged that the federal agents were violating the Constitution, but refused to issue the restraining order, arguing that the state lacked standing to sue on behalf of protestors.

“The federal government acted in violation of those individuals’ rights and probably acted in violation of the Constitution in the sense of exercising powers that are reserved to the states, but just because the federal government acts in ways that overstep its authority doesn’t mean the state has an injury.”

Consider what this judge asserted: the people of the state suffered no injury when the federal government oversteps the powers they delegated to it in the Constitution.

The judge likely views the state as simply the government. And it’s true, the Oregon government wasn’t “injured.” But the state government is merely an administrative arm of the political society known as Oregon. Ultimately, the state is – to use James Madison’s definition from the Report of 1800 –  “The people composing those political societies, in their highest sovereign capacity.” A.G. Rosenblum sued as a representative of the people of Oregon and they were undeniably injured when the federal government seized power that rightfully belonged to them and them alone.

Judge Michael Mosman failed to undertake his most basic duty as a federal judge: to protect and defend the Constitution of the United States. Instead, he protected and defended usurped federal power.

But this should come as no surprise. We shouldn’t expect a federal government employee to limit the power of his employer. This is why we have to pursue state-based solutions to the problem of federal overreach.


Mike Maharrey

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