In a thought-provoking opinion editorial for the Daily Caller, Alan Dershowitz, a professor emeritus at Harvard Law School, delves into the complexities surrounding President Donald Trump's decision to deploy federal troops to American cities.
Dershowitz presents this scenario as a quintessential example of constitutional ambiguity, where the resolution is far from predictable due to the myriad of arguments and ever-evolving circumstances.
Dershowitz outlines several clear conclusions regarding presidential authority. He asserts that under Article 2 of the U.S. Constitution, the president possesses the authority to dispatch federal law enforcement to safeguard federal buildings or officials from perceived threats.
The President's discretion in determining such threats is subject to limited judicial review, and state and city officials cannot obstruct this federal prerogative. Conversely, Dershowitz emphasizes that absent a federal interest, the President lacks authority over local matters like street crime, which are governed by the 10th Amendment and various statutes.
The editorial further explores the President's unique authority over Washington, D.C., which remains greater than that over other cities, despite the District of Columbia Home Rule Act of 1973. Dershowitz also notes that in certain limited situations, such as an "insurrection," the President may exercise authority even without a direct federal interest. However, the law remains vague on defining an insurrection, determining its occurrence, and the judiciary's role in reviewing such presidential decisions.
Dershowitz draws parallels between insurrections and invasions, noting that while invasions are somewhat easier to define, there are still challenging cases. He raises the question of decision-making authority within a democracy, particularly one with checks and balances like the United States. The legal system acknowledges the potential for decision-makers to err, leading to the question: "Who has the right to be wrong?" In most democracies, this right belongs to the elected legislature, but since the landmark Marbury v. Madison decision in 1803, legislative decisions are subject to constitutional judicial review.
The editorial humorously references a cartoon depicting the framers of the Constitution intentionally making constitutional definitions "wishy-washy." Dershowitz likens this ambiguity to former Supreme Court Justice Potter Stewart's famous remark on defining hardcore pornography: "I know it when I see it." This analogy extends to insurrections, which are challenging to define with precision but easier to identify when they occur.
Dershowitz questions whether the President must wait for insurrectionists to gain significant support before taking preventive measures, such as deploying federal law enforcement or troops. He anticipates that these questions will eventually reach the Supreme Court, which may defer providing categorical answers. In the interim, district judges across the nation are expected to rule against the President, except in cases involving federal protection.
The editorial concludes with the acknowledgment that "wishy-washy" and "we'll know it when we see it" are the best interpretations available in this intricate situation. Dershowitz's insights underscore the ongoing constitutional debate over presidential power and the challenges of navigating legal ambiguities in a democratic society.
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