Police – Earlybirds Invest

On Monday, President Donald Trump released an executive order invoking a rarely used federal law that allows him to temporarily seize control over Washington, DC’s police force. Later the same day, DC’s Democratic Mayor Muriel Bowser seemed to concede that there’s nothing she can do about it.

“What I would point you to is the Home Rule Charter that gives the president the ability to determine the conditions of an emergency,” Bowser said Monday afternoon. “We could contest that, but the authority is pretty broad.”

Bowser is almost certainly correct that Trump can seize control of her city’s police force, at least for a little while.

The District of Columbia is not a state, and does not enjoy the same control over its internal affairs that, say, nearby Virginia or Maryland does. The Constitution gives Congress the power to “exercise exclusive Legislation in all Cases whatsoever” over the nation’s capital. If Congress wanted to, it could turn DC into a federal protectorate tomorrow.

In 1974, however, Congress enacted the District of Columbia Home Rule Act, which generally gives DC residents the power to elect the city’s leaders. But that law contains an exception that allows the president to briefly take command of DC’s police.

“Whenever the President of the United States determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for federal purposes,” the law provides, the president may require the city’s mayor to provide him “such services of the Metropolitan Police force as the President may deem necessary and appropriate.”

The same law, however, also provides that presidential control over DC police must terminate after 30 days, unless Congress takes some action to extend it. So, assuming that the courts actually apply this 30-day limit to Trump, Trump’s control over DC’s local police will only last a month at most.

Indeed, Trump’s own executive order seems to acknowledge that his powers are time-limited. The order requires Mayor Bowser to “provide the services of the Metropolitan Police force for Federal purposes for the maximum period permitted under section 740 of the Home Rule Act.”

The Home Rule Act, moreover, is fairly adamant that this 30-day limit is real. It provides that, absent congressional action, “no such services made available pursuant to the direction of the President … shall extend for any period in excess of 30 days.” So, if Trump does try to extend the time limit without Congress’s consent, the courts should not permit him to do so.

Trump often uses “emergency” powers to address ordinary things

Trump loves to declare emergencies. In his first 100 days in office, he declared eight of them, more than any other president — including himself in his first term. His DC police order is just the latest of these emergency declarations. Trump claims that “crime is out of control in the District of Columbia,” and this supposed situation justifies invoking emergency powers to take control of DC’s police.

The idea that DC faces a genuine emergency is a farce. As pretty much everyone who has written about Monday’s executive order has noted, violent crime rates in the city are at a 30-year low. So, even if you concede that crime is such a problem in DC that it justifies a federal response, that problem has existed for three decades. A persistent problem is the opposite of an emergency.

That said, Bowser is correct that the Home Rule Act’s text permits the president, and the president alone, to determine whether an emergency exists that justifies taking control of DC’s police. The relevant language of the statute provides that Trump may invoke this power “whenever the President of the United States determines that special conditions of an emergency nature exist.”

Broadly speaking, it makes sense to give the president unreviewable authority to decide when to invoke certain emergency powers. The very nature of an emergency is that it is a sudden event that requires immediate action, without which matters could deteriorate rapidly. Think of a heart attack, a major natural disaster, or an insurrection.

Suppose, for example, that a violent mob attacks the US Capitol during an important national event, such as the congressional certification of a presidential election. When Congress enacted the Home Rule Act, it quite sensibly could have thought that the president should be able to draw upon all nearby law enforcement officers to quell such an attack on the United States — without having to first seek permission from local elected officials, or a judge.

Congress, of course, did not anticipate that the president might be complicit in such an attack. But that doesn’t change the fact that the statute says what it says. A nation as large and diverse as the United States cannot function unless its chief executive has the power to take some unilateral actions. If a president abuses that authority, the proper remedy is often supposed to be the next election.

It’s worth noting that not every emergency statute is worded as permissively as the Home Rule Act’s provision governing local police. In May, for example, a federal court struck down many of the ever-shifting tariffs that Trump imposed during his time back in office. One of the plaintiffs’ primary arguments in that case, known as V.O.S. Selections v. Trump, is that Trump illegally tried to use an emergency statute to address an ordinary situation.

Trump primarily relied on a statute known as the International Emergency Economic Powers Act of 1977 (IEEPA) to justify his tariffs. That law gives him fairly broad authority to “regulate” international transactions, but this power “may only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency has been declared.”

Thus, the text of IEEPA is quite different from the text of the Home Rule Act. While the Home Rule Act permits the president to act whenever he determines that an emergency exists, IEEPA imposes two conditions on the president. One is that there must be an emergency declaration, but the other is that the president must invoke IEEPA to deal with an actual “unusual and extraordinary threat.”

Trump claims that many of his tariffs are justified because of trade deficits — the United States buys more goods from many nations than it sells — but the US has had trade deficits for at least two decades. So trade deficits are hardly an “unusual and extraordinary threat.”

Some of Trump’s invocations of emergency power, in other words, are vulnerable to a legal challenge. But the question of whether any particular invocation may plausibly be challenged in court will turn on the specific wording of individual statutes.

Will the courts actually enforce the 30-day limit?

All of this said, the Home Rule Act does contain one very significant limit on presidential power: the 30-day limit. And the statute is quite clear that this limit should not be evaded. Again, it states that “no” services made available to the president “shall extend for any period in excess of 30 days, unless the Senate and the House of Representatives enact into law a joint resolution authorizing such an extension.” (The law also permits Congress to extend this 30-day limit by adjourning “sine die,” meaning that Congress adjourns without formally setting a date for its return, something it typically only does for a brief period every year.)

So what happens if, a month from now, Trump declares a new emergency and tries to seize control of DC’s police for another 30 days? If the courts conclude that he can do that, they would make a mockery of the Home Rule Act’s text. Presidents should not be allowed to wave away an explicit statutory limit on their authority by photocopying an old executive order and changing the dates.

That said, the Supreme Court is dominated by Republicans who recently held that Trump may use the powers of the presidency to commit crimes. So, while the Home Rule Act is very clear about the 30-day limit on Trump’s power, there is no guarantee that this Supreme Court will rule that the law applies to him.

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