Could President Trump Take Over Policing in Wyandotte County? (A Brief Primer on Presidential Power at our Current Moment)

[An expanded version of my Insight Kansas column, which appeared in Kansas newspapers this weekend.]

Three weeks ago, President Trump declared that "the District of Columbia has lost control of public order and safety," and ordered armed troops into the streets of Washington DC to fight crime. His additional comments--that the nation’s capital is filled with "violent gangs and bloodthirsty criminals, roving mobs of wild youth, drugged-out maniacs, and homeless people"—were all basically>untrue; while there are plenty of disputesover how to measure DC’s violent crime rates and how to interpret the data we do have, it seems clear that Washington DC is actually experiencing lower crime rates than it has in decades. But my primary interest here is more local than that. 

At the time Trump spoke, the FBI listed the District of Columbia as the 29^th most violent city in the U.S., with an average of 926 violent crimes per each 100,000 residents. That’s above the national average—but also well below Kansas City, KS, which the FBI ranked 21^st, with an average of 1047 violent crimes per 100,000 people. (Kansas City, MO, is ranked higher still, all the way up at 9^th place.)

So…could Trump invoke emergency authority to send troops into Kansas City, KS (and possibly KCMO, Overland Park, Olathe, etc.)? After all, KCK has seen two law enforcement officers killed just this past summer, and its police department has a sad legacy of corruption. Maybe the Unified Government of Wyandotte County has "lost control" as well?

My response to this speculation is: highly unlikely, but unfortunately not impossible.

President Trump likes declaring emergencies (ten so far in his first seven months in office; counting his first term in office, he’s issued 20 of the 90 presidentially declared emergencies since the process was codified over a century ago, more than one-fifth of the total). In his mind—and, sadly, in the minds of many of his supporters—these declarations allow him to take action without any supporting legislation from Congress. When he’s done this to federalize National Guard troops and use them for domestic enforcement purposes without any request from the state’s governor—as he did when ICE agents faced public opposition in Los Angeles—it likely violated the Posse Comitatus Act (and possibly the Declaration of Independence—which condemned King George III for imposing "Standing Armies without the Consent of our legislatures"—and the 10^th Amendment—which stipulates that powers not specifically mentioned in the Constitution are "reserved to the States"—as well).

Much of this doesn’t apply to Washington DC; it’s a federal district, not a city within a state, and consequently the president has complete control over its National Guard, though many constitutional questions remain. (It's also far from clear that the troops Trump has sent to Washington DC actually have anything to do insofar as the safety concerns he ranted about are concerned.) Still, it appears to be at least putatively settled law that were President Trump to do what he did in DC in KCK or more broadly, beginning with federalizing the Kansas National Guard, he would be on very shaky ground legally, assuming Governor Kelly hadn’t contacted him for help. (Though of course, how the Supreme Court will rule on this issue of presidential power, given the support for Trump’s expansive claims which the conservative majority on the court has already shown in multiple cases, is not something anyone who cares about the traditional interpretation of the separation of powers should count on.)

In any case, it’s fairly obvious that political calculations are often trumping (pun most definitely intended) legal considerations as the president and his inner circle make decisions. In this specific case, the cities that Trump has mentioned sending;specialized military units into are all Democratic-leaning ones in mostly Democratic states: Chicago, IL, New York, NY, Baltimore, MD, etc. Kansas, of course, is not a mostly Democratic state. But Wyandotte County is—having elected Sharice Davids, Kansas’s lone Democratic Congressperson, four times in a row—and Kansas City, MO, is even more so. And Trump has been pretty explicit about seeking to change the prevailing politics in the Kanas City area.

So could Trump’s desire to turn up the heat on urban areas that have protested, pushed back, and voted against his policies (as Kansas City definitely has), and thereby put pressure on their internal political dynamics and boundaries, extend to the KC metro region? Kelly, who has walked a moderate line throughout her time as governor, would surely rather avoid a fight with the president (unlike California Governor Gavin Newsom). But I’m also sure that, absent a truly unprecedented emergency, she’d deny him access to Kansas’s National Guard. How would the Republican supermajority in Topeka—led by representatives strongly supportive of President Trump’s policies—respond to that?

Let’s hope we never find out.