tag:theconversation.com,2011:/africa/topics/10th-amendment-34640/articles10th Amendment – The Conversation2022-11-14T13:26:48Ztag:theconversation.com,2011:article/1938172022-11-14T13:26:48Z2022-11-14T13:26:48ZHow much can public schools control what students wear?<figure><img src="https://images.theconversation.com/files/493929/original/file-20221107-3609-gsgzt4.jpg?ixlib=rb-1.1.0&rect=15%2C20%2C3346%2C1900&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Are some shirts too distracting for school?</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/RelaxingSchoolDressCodes/b94019590f444249a31ec8b0a5033257/photo">AP Photo/Gillian Flaccus</a></span></figcaption></figure><p>School dress codes can be <a href="https://www.gao.gov/assets/gao-23-105348.pdf">harmful to LGBTQ students and students of color</a>, according to the U.S. Government Accountability Office, the investigative arm of Congress. These codes can lead school officials to punish these two groups for simply who they are or for expressing themselves.</p>
<p>However, it has long been held by the Supreme Court that students do not “<a href="https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-tinker-v-des-moines">shed their constitutional rights</a> to freedom of speech or expression at the schoolhouse gate,” as a 1969 ruling put it. But that’s not carte blanche for students to go wild and wear just anything.</p>
<p>As a <a href="https://scholar.google.com/citations?hl=en&user=jtyw3-sAAAAJ">professor of education policy</a> who studies students’ constitutional rights – such as <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/hplp43&div=5&id=&page=">their expressions through clothing</a> – I believe it’s important for students, parents and school staff to know what the law says about how much control a school can have over the kinds of clothes a student may decide to wear.</p>
<h2>Federal and state jurisdiction</h2>
<p>Public education is not mentioned in the U.S. Constitution, so it falls to the states to regulate, under the <a href="https://www.law.cornell.edu/constitution/tenth_amendment">10th Amendment</a>. But since the <a href="https://www.federalregister.gov/documents/2016/11/29/2016-27985/elementary-and-secondary-education-act-of-1965-as-amended-by-the-every-student-succeeds">Elementary and Secondary Education Act of 1965</a>, Congress has provided federal funding for education in exchange for states and school districts enacting certain policies. An example is <a href="https://www2.ed.gov/programs/titleiparta/index.html">Title I funding to boost education in schools</a> that serve low-income communities.</p>
<p>The Bill of Rights, including the <a href="https://constitution.congress.gov/constitution/amendment-1/">First Amendment</a>, governs publicly funded efforts, such as public education. </p>
<p>The legal standard for dress codes is, therefore, that amendment’s declaration that citizens’ free expression should generally be free from government regulation – and therefore, students’ appearances should largely be outside school officials’ jurisdiction.</p>
<h2>Tinkering with education</h2>
<p>But the First Amendment wasn’t always applied. It was only a few decades ago that federal courts debated whether students in public schools had any rights at all under the Constitution. In 1965, five students wore black armbands – a form of silent political protest – to school, objecting to the Vietnam War. The oldest three students were <a href="https://www.oyez.org/cases/1968/21">suspended from school for wearing them</a> and refusing to take them off when ordered to do so by their schools’ principals.</p>
<p>That case, Tinker v. Des Moines Independent Community School District, made its way to the Supreme Court, which in a 1969 ruling declared that <a href="https://www.oyez.org/cases/1968/21">students do have First Amendment rights</a> as long as their exercise of those rights does not disrupt teaching or learning.</p>
<p>In subsequent cases, courts clarified what those educational disruptions were. They included promoting illegal behavior, such as <a href="https://www.oyez.org/cases/2006/06-278">drug use</a>, and using <a href="https://supreme.justia.com/cases/federal/us/478/675/">profane or vulgar language</a>. </p>
<p>In addition, courts allowed schools to restrict student publications that were <a href="https://www.oyez.org/cases/1987/86-836">school-sponsored or school-promoted</a>, because courts deemed that speech to belong to the school, not the students. </p>
<p>Those cases arose because the Supreme Court viewed those rights as expansive, but schools tended to take a narrower view. As I have found, principals and superintendents were <a href="https://open.mitchellhamline.edu/policypractice/vol43/iss1/3">quick to prohibit expression they disliked</a>, on the grounds that it was disruptive.</p>
<h2>Are blue jeans really an expression of rights?</h2>
<p>Generally, the Supreme Court has declined to take up issues of dress codes and has largely left those issues to state courts. This means there is not any binding federal case law to follow, and different states have applied the law differently. </p>
<p>However, one federal case is binding on schools in Michigan, Kentucky, Ohio and Tennessee – states under the jurisdiction of the <a href="https://www.ca6.uscourts.gov/">U.S. 6th Circuit Court of Appeals</a> – though not necessarily in other states. That case, decided in 2005, is <a href="https://casetext.com/case/blau-v-fort-thomas-public-school-dist">Blau v. Fort Thomas Public School District</a>. A parent had objected to a new school dress code because, as the complaint said, their child “wants to be able to wear clothes that ‘look nice on [her],’ that she ‘feel[s] good in’ and that express her individuality.”</p>
<p>Ultimately, the 6th Circuit held that students could largely wear what they wanted, so long as it was making a statement – as was the case with the armbands opposing the Vietnam War. But they were not protected by the First Amendment for wearing something they just felt like wearing. The court concluded the claim was a “<a href="https://casetext.com/case/blau-v-fort-thomas-public-school-dist">generalized and vague desire</a> to express her middle-school individuality” and said the First Amendment does not protect every piece of clothing that an adolescent may choose to wear on any given day.</p>
<h2>Gender identity expression</h2>
<p>There have not been any U.S. Supreme Court cases on gender expression and dress. However, a 2001 ruling from the Superior Court of Massachusetts might shed some light on how a court may treat a case.</p>
<p>In <a href="https://casetext.com/case/pat-doe-v-yunits">Doe v. Yunits</a>, a student at South Junior High School in Brockton, Massachusetts, had been diagnosed with a gender identity disorder – as the court put it, “<a href="https://icj2.wpenginepowered.com/wp-content/uploads/2012/07/Doe-v.-Yunits-et-al-Superior-Court-of-Massachusetts-United-States.pdf">which means that, although she was born biologically male, she has a female gender identity</a>.” She sought to wear the clothing conforming to her gender identity. However, the principal sent the student home to change when she arrived wearing girls’ clothing. The school cited incidents between the student and male students such as blowing kisses as disruptive.</p>
<p>The court concluded that the student intended to send a message, and by virtue of the hostility she received from the faculty and student body, that message was received. Second, the court stated the school intended to suppress the speech itself, but had no substantial government interest in doing so. Finally, the court held that the student’s manner of dress, as a form of expression, was separate from her disruptive conduct. </p>
<p>The school contended that it would discipline other students who dressed in this manner. However, the court disagreed because the school’s argument hinged on gender orientation: A student born female and wearing the same clothing as this student would go unnoticed, so this student’s clothes should not have been a distraction either.</p>
<h2>No real certainty</h2>
<p>Ultimately, how people dress is a form of self-expression, but students’ choices <a href="https://open.mitchellhamline.edu/policypractice/vol43/iss1/3">may not always be protected</a>. It is important to realize that students in a public school are not entitled to the same freedoms of speech and expression as adults in a public space.</p>
<p>Schools can enforce a dress code if they have sound reasoning to do so, especially when the rules are legitimately tied to preventing disruption and protecting health and safety. However, with expanded definitions of gender and identity, more court cases are on the horizon.</p><img src="https://counter.theconversation.com/content/193817/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Brian Boggs does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Supreme Court has yet to rule on whether school dress codes are protected under the law.Brian Boggs, Assistant Professor of Policy and Educational Leadership, University of MichiganLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1587302021-04-29T12:47:05Z2021-04-29T12:47:05ZState lawsuits over stimulus tax rule face uphill battle<figure><img src="https://images.theconversation.com/files/396369/original/file-20210421-13-oozbx7.jpg?ixlib=rb-1.1.0&rect=35%2C106%2C7805%2C5037&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Vice President Kamala Harris speaks at an American Rescue Plan virtual briefing on March 11, 2021 in Washington, D.C.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vice-president-kamala-harris-speaks-at-an-american-rescue-news-photo/1306551744?adppopup=true">Tasos Katopodis/Getty Images</a></span></figcaption></figure><p>States were told by the federal government that they can’t use pandemic relief funds passed by Congress in March to lower taxes. In response, 16 states have filed lawsuits challenging the constitutionality of that <a href="https://www.nytimes.com/2021/03/17/us/politics/stimulus-states-lawsuit-tax-cuts.html">restriction</a> in the <a href="https://home.treasury.gov/news/featured-stories/fact-sheet-the-american-rescue-plan-will-deliver-immediate-economic-relief-to-families">US$1.9 trillion legislation</a>, known as the American Rescue Plan Act of 2021.</p>
<p>The rescue plan makes $350 billion available to state and local governments over the next four years to cover costs associated with COVID-19. It guarantees every state at least $500 million, but more can be provided based on unemployment numbers and poverty rates.</p>
<p>The law, however, forbids states from using this money “to either directly or indirectly offset a reduction in net tax revenue” over those four years. In other words, rescue plan money cannot pay for state tax cuts.</p>
<p>That restriction prompted the lawsuits, which are pending in Ohio, Arizona, Missouri and Alabama federal courts.</p>
<p>The states claim that the rescue plan’s policies <a href="https://constitutioncenter.org/interactive-constitution/interpretation/amendment-x/interps/129">violate the 10th Amendment</a>, which helps define the relationship between the federal government and the states. </p>
<p>Historically, the Supreme Court has interpreted this provision to prevent the federal government from directing state policy rather than to limit what the feds can do themselves.</p>
<p>The rescue plan might run afoul of the 10th Amendment if it dictated what laws state legislatures must or must not adopt. That would mean states could use the federal money to offset tax cuts. </p>
<p>But as a <a href="https://case.edu/law/our-school/faculty-directory/jonathan-l-entin">constitutional law professor</a> who has written extensively about federal powers, I think it’s unlikely that the rescue plan violates the 10th Amendment. That’s because it does not order states to do anything. </p>
<h2>Supreme Court precedent</h2>
<p>In 1992, the Supreme Court declared that a federal law ordering states to pass legislation for the <a href="https://www.oyez.org/cases/1991/91-543">safe disposal of nuclear waste</a> violated the 10th Amendment. And in 2018 the high court struck down the Professional and Amateur Sports Protection Act, which <a href="https://www.oyez.org/cases/2017/16-476">forbade states from authorizing sports betting</a>.</p>
<p>But the rescue plan does not explicitly require or forbid states to enact legislation, as the nuclear waste and sports gambling laws did.</p>
<p>It offers states a deal: If you want federal money, you can’t use it to subsidize tax cuts. States get to choose whether they prefer tax cuts or federal funding. So I believe the 10th Amendment challenge will likely fail.</p>
<p>The plaintiff states rely more heavily on a claim that the tax provision imposes an unconstitutional condition on receipt of their funds. They have two main arguments.</p>
<p>The states assert that the law forbids them from cutting taxes, even though it does not.</p>
<p>They rely on the Supreme Court’s decision to overturn a provision of the Affordable Care Act that <a href="https://www.oyez.org/cases/2011/11-393">withheld all federal Medicaid funding from states</a> that refused to expand the health coverage program. </p>
<p>This was a real penalty: The feds were already providing more than half of all Medicaid money and would pay virtually all of the additional costs of expanding the program. States that refused to expand Medicaid <a href="https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2012/06/28/court-lets-states-opt-out-of-medicaid-expansion">would get no federal Medicaid money at all</a>, leaving them much worse off than they were before.</p>
<p>But the rescue plan does not put the states in a worse position.</p>
<p>The rescue plan seeks only to make sure that the federal spending goes to cover the costs of the pandemic. It imposes a condition on federal spending, something that the Supreme Court has consistently approved.</p>
<h2>Funds for pandemic expenses</h2>
<p>The rescue plan tax provision more closely resembles a law that <a href="https://www.csmonitor.com/1986/1016/adrink.html">withheld federal highway money</a> from states that had a drinking age below 21. <a href="https://www.oyez.org/cases/1986/86-260">The Supreme Court upheld that law</a> in 1987.</p>
<p>The Supreme Court recognized that a condition could be unconstitutionally coercive. But it dismissed that concern because states would lose only 5% of their highway money if they failed to raise their drinking age. Every state except South Dakota complied with the condition. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Harris explains how the Covid relief package will help small businesses." src="https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=395&fit=crop&dpr=1 600w, https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=395&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=395&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=496&fit=crop&dpr=1 754w, https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=496&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/396371/original/file-20210421-19-z3vb3b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=496&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Vice President Harris embarked on a three-state tour in March to highlight how the American Rescue Plan Act of 2021 will help small businesses in driving the American economic recovery.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/vice-president-kamala-harris-right-and-the-second-gentleman-news-photo/1307483418?adppopup=true">Helen H. Richardson/MediaNews Group/The Denver Post via Getty Images</a></span>
</figcaption>
</figure>
<p>The same principle should apply here. The rescue plan withholds federal relief if the funds offset state tax cuts. The feds need not provide any relief, but it can make sure that the relief it does provide is used to <a href="https://apnews.com/article/joe-biden-personal-taxes-legislation-coronavirus-pandemic-unemployment-insurance-104c5477a7879abd4117abfea25c30d5">defray pandemic expenses</a>. </p>
<p>The plaintiff states also maintain that the broad scope of the rescue plan’s tax provision – which covers “direct or indirect” reductions in net tax revenue, such as by lowering tax rates or providing tax rebates – makes its coverage ambiguous. That, states claim, violates the requirement that conditions on federal spending be “clearly stated.”</p>
<p>But at least one state, Missouri, concedes that the provision simply forbids applying stimulus money “to offset a specific tax reduction of a similar amount.” That concession could hurt the states in court.</p>
<p>And Treasury Secretary Janet Yellen has authority to promulgate regulations to clarify any ambiguity. She recently <a href="https://home.treasury.gov/news/press-releases/jy0113">issued guidance under the law</a>, stating that changes to state tax laws that take account of recent changes to federal tax law will not be treated as tax cuts under the rescue plan.</p>
<p>[<em>The Conversation’s Politics + Society editors pick need-to-know stories.</em> <a href="https://theconversation.com/us/newsletters/politics-weekly-74/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=politics-need-to-know">Sign up for Politics Weekly</a>.]</p>
<h2>Other payment methods</h2>
<p>Suppose, however, that the rescue plan does have a broader sweep.</p>
<p>States still could provide economic help to their residents and keep all of their COVID-19 money. They could do so by using ARPA money to pay people directly instead of reducing their taxes.</p>
<p>Maybe states should be careful not to label those payments as rebates, which might run afoul of the restriction. But they could avoid that problem by calling them, in <a href="https://www.congress.gov/bill/117th-congress/house-bill/1319/text">the rescue plan’s words</a>, “assistance to households, small businesses, and nonprofits” and “aid to impacted industries.”</p>
<p>However these cases get resolved, we should view them as the latest round in the political battle between the states and the federal government over contentious federal policy.</p>
<p>Legal doctrines might evolve, but in many respects these lawsuits are really performances: They allow state officials to score <a href="https://www.latimes.com/california/story/2020-08-28/california-100-lawsuits-trump-administration">political points with their constituents</a>, <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/05/27/why-texas-likes-to-sue-the-federal-government-a-lot/">whether or not their legal arguments ultimately prevail</a>.</p><img src="https://counter.theconversation.com/content/158730/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jonathan Entin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>States claim the stimulus law assaults state sovereignty by barring local governments from using aid money to cut taxes. But the Supreme Court has consistently approved conditions on federal spending.Jonathan Entin, Professor Emeritus of Law and Adjunct Professor of Political Science, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1435742020-08-05T12:29:11Z2020-08-05T12:29:11ZDon’t want federal agents in your city or town? Then protect federal property<figure><img src="https://images.theconversation.com/files/351171/original/file-20200804-20-1ma5mmh.jpg?ixlib=rb-1.1.0&rect=27%2C27%2C5934%2C3962&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">During a protest, federal police officials stand inside a fence at the federal courthouse in Portland, Oregon, July 25, 2020. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federal-police-officials-stand-inside-a-fence-at-the-mark-o-news-photo/1227783256?adppopup=true">(Photo by Ankur Dholakia / AFP via Getty Images</a></span></figcaption></figure><p>I recently visited Portland, Oregon, and saw the destruction around the federal courthouse there – <a href="https://www.youtube.com/watch?v=s1FnOvg62O0">walls defaced with graffiti</a>, fences vandalized, and the remains of garbage fires that had been set. </p>
<p>The vast majority of anti-racism protests over the past two months in the city <a href="https://www.usatoday.com/story/opinion/2020/07/31/portland-protest-crowds-mostly-peaceful-violent-incidents/5546265002/">have reportedly been peaceful</a>, and the damage was due to a small minority of rioters who fought police and federal agents around the building.</p>
<p><a href="https://www.usatoday.com/story/news/nation/2020/07/22/portland-protests-grow-larger-after-trump-sends-feds/5483028002/">President Donald Trump sent in federal agents</a>, claiming Portland was no longer able to maintain order and adequately protect federal property. </p>
<p>The agents’ uninvited presence, and how they purportedly treated protesters, escalated the conflict. The city’s mayor and Oregon’s governor repeatedly asked the agents to leave; <a href="https://theconversation.com/4-lawsuits-that-challenge-trumps-federal-agents-in-portland-test-issues-other-cities-will-likely-face-143331">the state attorney general sued to restrict the operations of federal agents</a>. The federal presence, they said, violated the 10th Amendment, which guarantees a state’s sovereign right to police its citizens. A federal judge in Portland rejected the state’s arguments for lack of standing. </p>
<p>As a three-term mayor and city council member, as well as <a href="https://priceschool.usc.edu/people/frank-zerunyan/">a legal scholar</a>, I know that what’s called “home rule,” or local control, is the most sacred refrain in the vocabulary of every mayor and council member I know. </p>
<p>At the same time, the scene I witnessed at the federal courthouse in Portland is disturbing. <a href="https://www.nytimes.com/2020/07/29/opinion/portland-protests-trump.html?action=click&module=Opinion&pgtype=Homepage">As political interests on both sides fuel the fire of the violence</a>, the American people are left wondering if federal agents will appear in their cities next. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Armed federal troops in Little Rock, Arkansas." src="https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=478&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=478&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=478&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=601&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=601&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350951/original/file-20200803-14-1r91zz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=601&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Federal troops were sent by President Dwight Eisenhower to Little Rock, Ark., in 1957 to protect Black students from mob violence when they integrated a city high school.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/federal-battle-troops-stand-with-rifles-ready-to-quell-mob-news-photo/515019922?adppopup=true">Bettmann/Getty</a></span>
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<h2>State sovereignty, freedom, independence</h2>
<p>The <a href="https://www.inquirer.com/opinion/commentary/impeachment-constitution-founding-fathers-demagogue-20200101.html">Founders feared an authoritarian central government</a>. <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2683&context=ulj">They worked to create</a> a functional republic strong enough to enforce national interests but limited enough to assure individual self-determination where citizens lived and worked. </p>
<p>While the concept of the municipality, and therefore home rule or local control, is not described in the United States Constitution, the <a href="https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2683&context=ulj">10th Amendment guarantees such local authority to the people through the states</a>. </p>
<p>The concept of decentralized governance predates the 10th Amendment. Article II of the 1777 <a href="https://www.ourdocuments.gov/doc.php?flash=false&doc=3">Articles of Confederation</a>, the predecessor to the Constitution, grants each state “<a href="https://www.govinfo.gov/content/pkg/SMAN-107/pdf/SMAN-107-pg935.pdf">sovereignty, freedom and independence</a>.” The 10th Amendment is the natural progression of Article II. </p>
<p>The constitution of each state is where “local control” is spelled out in detail, including police powers to help govern public health, safety and welfare. Since 1824, the <a href="https://supreme.justia.com/cases/federal/us/22/1/">U.S. Supreme Court has affirmed the right of states to exercise these police powers</a>, including, in the current context, quarantine laws and health laws of every description. </p>
<p>Over the years, more conservative Supreme Court justices have specifically invoked the principle of reserving police powers to states. Justice William Rehnquist, in striking down a federal law which prohibited bringing a gun into a school zone, said that law threatened to convert federal authority into a “<a href="https://www.law.cornell.edu/supct/html/93-1260.ZO.html">general police power of the sort retained by the states</a>.” </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A painting of George Washington and his troops." src="https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=380&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=380&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=380&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=478&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=478&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350953/original/file-20200803-14-12fo4hm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=478&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">George Washington and his troops in Maryland, before their march to suppress the Whiskey Rebellion in western Pennsylvania.</span>
<span class="attribution"><a class="source" href="https://commons.wikimedia.org/wiki/File:WhiskeyRebellion.jpg">Wikimedia, from the collection of the Metropolitan Museum of Art</a></span>
</figcaption>
</figure>
<h2>From Whiskey Rebellion to LBJ</h2>
<p>How can the federal police intervention today in American cities be reconciled with the well-established jurisprudence on state sovereignty and the recognition of local police powers? </p>
<p>The question has been especially acute in Portland, <a href="https://www.npr.org/2020/07/19/892826853/like-adding-gasoline-oregon-officials-blast-trump-response-to-portland-protests">where local authorities claimed</a> that there was no need or urgency to use federal police power to quell local protests. </p>
<p>But this claim is a matter of opinion and perhaps a misinterpretation of well-settled law. </p>
<p>The conflict between central national power and local police power finds its roots in the <a href="http://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/whiskey-rebellion/">Whiskey Rebellion of 1794</a>.</p>
<p>Farmers in western Pennsylvania objected to an excise tax imposed on them as an abuse of federal authority. The protests became violent. When the home of the regional tax collector was burned, President George Washington had <a href="https://www.pbs.org/wgbh/americanexperience/features/duel-whiskey-rebellion/">little choice but to stop the violence</a>, which threatened the Union’s stability. </p>
<p>In 1807, President Thomas Jefferson signed into law the <a href="https://theconversation.com/can-the-president-really-order-the-military-to-occupy-us-cities-and-states-139844">Insurrection Act</a>. This act empowers the American president as commander in chief to deploy military troops within the U.S. in particular circumstances. It’s the same act that President Trump threatened to use in American cities.</p>
<p>In 1827, Supreme Court Justice Joseph Story – based on the act and speaking for the majority of the court – vested in the president the authority to use federal power to enforce federal law. </p>
<p><a href="https://supreme.justia.com/cases/federal/us/25/19/">Justice Story wrote</a>, “We are all of opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons.” </p>
<p>Subsequent acts of Congress between 1860 and 2001 <a href="https://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=3596&context=clevstlrev">gave the president broader powers</a> to decide the conditions <a href="https://www.law.cornell.edu/uscode/text/10/252">justifying the use of state militia by the federal government</a>. </p>
<p>Presidents subsequently used that power to enforce federal law inside states. </p>
<p>In his <a href="https://avalon.law.yale.edu/19th_century/lincoln1.asp">first inaugural address</a>, in 1861, President Abraham Lincoln declared his constitutional mandate to execute federal law faithfully against threats of Southern states withdrawing from the Union. He then sent federal troops to Confederate South Carolina based on the argument that he must enforce federal law and <a href="https://www.smithsonianmag.com/history/fort-sumter-the-civil-war-begins-1018791/">protect Fort Sumter, which was federal property</a>. </p>
<p>In 1894, <a href="https://www.britannica.com/event/Pullman-Strike">Eugene Debs led a national railroad strike of 125,000 workers</a> that ultimately disrupted the U.S. mail system. A federal circuit court forbid the strike. Debs and his colleagues ignored the order. Rioting ensued and <a href="https://www.britannica.com/event/Pullman-Strike/The-injunction">President Grover Cleveland sent federal troops into Illinois</a> over the objections of Governor John Peter Altgeld. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Troops in Chicago during the Pullman Strike." src="https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=470&fit=crop&dpr=1 600w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=470&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=470&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=591&fit=crop&dpr=1 754w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=591&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/350954/original/file-20200803-18-w1ooni.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=591&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">President Grover Cleveland sent troops to Illinois in 1894 to quell the Pullman Strike, over the governor’s objections.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/view-of-troops-sitting-outside-their-tents-during-the-news-photo/94287225?adppopup=true">Chicago History Museum/Getty Images</a></span>
</figcaption>
</figure>
<p>By 1895, the Debs case had been appealed to the Supreme Court, challenging the authority of the president to use federal power to enforce federal law in a state. The court concluded that, in the case of a threat to federal law deemed critical by the president, the “<a href="https://constitutionallawreporter.com/2016/03/08/re-debs-using-commerce-clause-uphold-labor-strike-injunction/">army of the nation, and all its militia, are at the service of the nation to compel obedience to its laws</a>.” </p>
<p>In 1954, to enforce the desegregation ruling in Brown v. Board of Education, President Dwight Eisenhower <a href="https://www.history.com/news/little-rock-nine-brown-v-board-eisenhower-101-airborne">federalized the Arkansas National Guard</a> and sent them, along with Army units, to protect nine Black students as they integrated a Little Rock school amid violent opposition by segregationists. </p>
<p>Similarly, President John F. Kennedy <a href="https://www.jfklibrary.org/learn/about-jfk/jfk-in-history/civil-rights-movement">sent federal troops to Mississippi and Alabama</a> to help integrate the Universities of Mississippi and Alabama. </p>
<p>In 1967, during the <a href="https://www.smithsonianmag.com/history/understanding-detroits-1967-upheaval-50-years-later-180964212/">deadly riots between police and residents</a> in Detroit, President Lyndon B. Johnson intervened and sent federal troops to control the unrest. He sent federal troops to Chicago in 1968 in <a href="https://millercenter.org/the-presidency/educational-resources/the-assassination-of-dr-martin-luther-king">response to protests sparked by the assassination of Martin Luther King Jr.</a></p>
<h2>Strong exception</h2>
<p>Previous presidents had a constitutional duty and authority to faithfully execute the laws of the United States, including sending federal officers to protect federal property and enforce federal law. What is the argument against President Trump doing the same? </p>
<p>The lesson here is for <a href="https://www.nytimes.com/2020/07/29/us/protests-portland-federal-withdrawal.html?action=click&module=Top%20Stories&pgtype=Homepage">state and local officials to implement the law and protect federal property</a>. Gov. Kate Brown of Oregon reportedly <a href="https://www.washingtonpost.com/politics/oregon-governor-federal-officials-announce-withdrawal-of-most-federal-agents-but-timelines-differ/2020/07/29/0e0d3aa2-d1d6-11ea-9038-af089b63ac21_story.html">agreed to secure the Federal Courthouse</a> in return for the departure of the federal agents. </p>
<p>President Kennedy, while sending federal troops to Birmingham, Alabama in 1963, <a href="https://www.upi.com/Archives/1963/05/13/JFK-sends-federal-troops-to-bases-near-Birmingham/5418123550584/">said he hoped the citizens of Birmingham themselves</a> would maintain “standards of responsible conduct that will make outside intervention unnecessary.” </p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p>
<p>What is compelling, however, in this conflict between federal and local authority are the words of Justice Story in 1827: “A free people are naturally jealous of the exercise of military power, and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility.” </p>
<p>The conduct of federal officials in protecting the civil rights of citizens in Portland under the First, Fourth and Fifth Amendments of the Constitution will remain under scrutiny. </p>
<p>But a president’s right to execute federal law and protect federal property will remain a strong exception to local control and local police power guaranteed by the 10th Amendment.</p><img src="https://counter.theconversation.com/content/143574/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Frank V. Zerunyan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>No one involved in local government wants to see federal law enforcement agents take over their policing. But a mayor who’s also a legal scholar says there’s history and precedent for it.Frank V. Zerunyan, Professor of the Practice of Governance, University of Southern CaliforniaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/704692017-01-06T01:15:06Z2017-01-06T01:15:06ZWant to challenge Trump on immigration? Try a strategy from the antebellum South<p>Immigrant communities and their advocates are gearing up to challenge President-elect Donald Trump’s proposals for immigration policy. </p>
<p>The U.S. federal system structure of government may be their best defense. </p>
<p>Trump <a href="https://www.washingtonpost.com/news/the-fix/wp/2016/11/13/donald-trump-plans-to-immediately-deport-2-to-3-million-undocumented-immigrants/?utm_term=.b6ab19cc17fb">has said</a> he will deport two to three million immigrants with criminal records. To find, apprehend, legally process, incarcerate and return that many people to their home countries would require the cooperation of local law enforcement. Only 5,700 immigration enforcement agents work the <a href="https://www.dhs.gov/news/2015/03/19/written-testimony-ice-director-house-committee-oversight-government-reform-hearing">entire geographical U.S.</a> By contrast, there are more than <a href="https://www.cbp.gov/careers/join-cbp/which-cbp-career/border-patrol-agent">20,000 border patrol agents</a> policing a jurisdiction that is limited to <a href="https://help.cbp.gov/app/answers/detail/a_id/1084/%7E/legal-authority-for-the-border-patrol">100 miles</a> of the border.</p>
<p>Although states and localities cannot evade enforcement of federal laws, they can refuse to cooperate with federal authorities in carrying out mass deportation. The underlying premise is that the U.S. Constitution mandates power be divided between the national government and state and local governments. States would have constitutional grounds for resisting – the same grounds that allowed southern states to argue in favor of preserving slavery. </p>
<p>My <a href="https://www.cambridge.org/core/journals/studies-in-american-political-development/article/lunatics-idiots-paupers-and-negro-seamenimmigration-federalism-and-the-early-american-state/9F82F0A8B00F407DE20ADE4D315917CA">research</a> on the historical overlap between slavery and immigration policies shows how the federal system is a <a href="https://books.google.com/books?id=m6alEQXmd3YC&pg=PR5&lpg=PR5&dq=anna+o.+law+tichenor+replogle&source=bl&ots=njgpwGdwo8&sig=qO2_GaSElbEJZ0MPDt1CFU0O91E&hl=en&sa=X&ved=0ahUKEwit96yQ-5nRAhVk_IMKHRTQCIoQ6AEIPDAE#v=onepage&q=anna%20o.%20law%20tichenor&f=false">double-edged sword</a> that can produce both liberal and conservative policy outcomes.</p>
<h2>The possibilities of a federal system</h2>
<p>Pro-immigrant forces are turning to the federal structure to resist Trump’s restrictive immigration proposals. Immediately after the election, mayors and other local officials <a href="http://www.chicagotribune.com/news/local/breaking/ct-trump-sanctuary-cities-immigrants-20161115-story.html">across major U.S. cities</a> vowed that their cities would remain “<a href="https://theconversation.com/whats-the-history-of-sanctuary-spaces-and-why-do-they-matter-69100">sanctuaries</a>” for immigrants. </p>
<p>As several law professors <a href="https://www.washingtonpost.com/opinions/trump-cant-force-sanctuary-cities-to-enforce-his-deportation-plans/2016/12/22/421174d4-c7a4-11e6-85b5-76616a33048d_story.html?utm_term=.eebd3ba0fa0a">recently wrote</a>, states and localities can argue that local law enforcement’s work would be compromised if they were dragooned into helping carry out federal immigration laws. Forcing state police to enforce federal immigration laws could make communities less safe, the argument goes, if residents feel compelled to hide from or refuse to cooperate with police because of their immigration status. </p>
<p>As for Trump’s threats to withhold funding from cities failing to enforce immigration laws, the legal doctrine on his side is <a href="http://www.citylab.com/politics/2016/12/how-badly-could-trump-hurt-sanctuary-cities/511727/?utm_source=twb">speculative</a> at best. The law he thinks he has on his side is not clear about how and how much federal funding can be withheld to states and localities that don’t toe the line on federal policy.</p>
<h2>The framers’ hopes</h2>
<p>The framers of the U.S. Constitution believed that to safeguard individual liberty against government tyranny, government power and authority should be divided to create checks and balances. In addition to three branches of government sharing power, the Constitution also splits authority between the national government, state and local governments. </p>
<p>The <a href="http://www.annenbergclassroom.org/page/tenth-amendment">10th Amendment</a> of the Constitution is the source of the states’ powers. It states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” </p>
<p>Traditionally, this division has meant that states control policies under its “<a href="http://www.pbs.org/tpt/constitution-usa-peter-sagal/federalism/state-powers/">police powers</a>,” which include health, safety and morals. Examples include regulating gambling, liquor, prostitution and cigarettes. In turn, the federal government confined itself to what James Madison described in <a href="http://avalon.law.yale.edu/18th_century/fed45.asp">Federalist Papers Number 45</a> as “principally on external objects, as war, peace, negotiation, and foreign commerce.”</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=750&fit=crop&dpr=1 600w, https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=750&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=750&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=943&fit=crop&dpr=1 754w, https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=943&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/151791/original/image-20170104-18641-buxzfu.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=943&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Family of African-American slaves on Smith’s Plantation Beaufort, South Carolina.</span>
<span class="attribution"><a class="source" href="http://www.learnnc.org/lp/multimedia/12772">Library of Congress</a></span>
</figcaption>
</figure>
<p>In the antebellum period, slave states <a href="https://www.amazon.com/States-Rights-Union-1776-1876-University/dp/0700612270">used the autonomy</a> allowed by the federal system to preserve slavery by arguing it was part of “states’ rights.” Later, during the civil rights era, southern states relied on the same arguments to justify racial segregation as part of the <a href="http://www.pbs.org/wgbh/amex/eyesontheprize/about/pt_102.html">“southern way of life,”</a> even though that belief contradicted federal law. Of the federal system, political scientist William Riker once <a href="https://www.amazon.com/Federalism-Operation-Significance-William-Riker/dp/B000KWH3NA">noted</a>, “Here it seems that federalism may have more to do with destroying freedom than with encouraging it.” Given its ignoble legacy on racial equality, the federal system earned a bad rap with those for racial equality.</p>
<p>However, the federal system can also produce liberal results because of the flexibility it permits across the 50 states. Supreme Court Justice Louis Brandeis <a href="https://www.law.cornell.edu/supremecourt/text/285/262">wrote in 1932</a>: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”</p>
<p>That belief has led to progressive policies. In the Progressive Era, 1890 to 1920, it was the states that first passed laws to protect their workers’ well-being, including <a href="https://books.google.com/books/about/Crusade_for_the_children.html?id=1xZHAAAAMAAJ">child labor laws</a>. By 1919 every state had a law banning children under 14 from working, even as a similar federal law was struck down by the Supreme Court. </p>
<p>More recently, many <a href="http://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx">states have legalized</a> the use of medical marijuana. By contrast, the federal government continues to criminalized all uses of the drug, resulting in <a href="http://www.salon.com/2012/10/29/ten_worst_sentences_for_marijuana_related_crimes/">tough federal convictions</a>.</p>
<p>Sometimes, states can succeed where the federal government cannot. Protecting immigrants may be the next example.</p><img src="https://counter.theconversation.com/content/70469/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anna O. Law receives funding from the National Science Foundation in the form of a research grant to study immigration decisions on gender and asylum. She is affiliated with the Scholars Strategy Network.</span></em></p>States once used their constitutional authority to argue in defense of slavery. Today, states can make a similar argument to protect immigrants from deportation, writes a legal scholar.Anna O. Law, Associate Professor of Political Science, City University of New YorkLicensed as Creative Commons – attribution, no derivatives.