Panel Discusses Presidential Powers in D.C. After Lafayette Square Protests
July 16, 2020
The White House’s show of force in ejecting protestors from Lafayette Square on June 1 has spurred civil rights advocates to bring suit on behalf of protestors, presenting the questions of which laws were improperly invoked and what rights need bolstering in the aftermath of the clampdown. These legal issues were at the heart of the D.C. Bar District of Columbia Affairs Community’s July 15 webinar, “What We Learned From Lafayette Square: A Discussion of the Insurrection and Home Rule Acts.” The webinar is now available on demand.
Moderated by Renée M. Hutchins, dean of the University of the District of Columbia David A. Clarke School of Law, the panel focused on the 1973 D.C. Home Rule Act and the 1807 Insurrection Act, which President Trump claimed he could have invoked to quash protests. The panelists also discussed how fundamental constitutional rights, especially First Amendment rights, and D.C. home rule conditions and statehood aspirations relate to the president’s claims and actions.
Daniel Freeman, professor and fellow at American University, explained that to win over reluctant members of Congress, D.C. home rule advocates had to make substantial concessions in the act’s text, such as giving up on a commuter tax and local selection of D.C. judges. Another concession was the act’s section 740, which states that emergency conditions determined by the president allow him to require use of the District’s Metropolitan Police.
“What is the authority of the president? It is pretty much wide open to basically commandeer the D.C. police force,” Freeman said.
Steven Schneebaum, interim director of International Law and Organizations at Johns Hopkins’ School of Advanced International Studies, said the Insurrection Act permits the president to employ military force within a state where the president ascertains that laws and constitutional rights are not being observed. However, Schneebaum pointed out, the Insurrection Act as amended specifically applies to the states, Guam, and the U.S. Virgin Islands and does not include the District of Columbia.
“So arguably the president does not have the authority to invoke the Insurrection Act on the streets of Washington, D.C.,” Schneebaum said. However, Schneebaum explained, there is a backdoor channel for the president because the District is not a state with a governor having authority over the National Guard. Therefore, the Pentagon, not the D.C. mayor, maintains authority for National Guard deployment in the District. The president, as commander over the Pentagon, can “effectively place armed soldiers” on D.C. streets.
Jonathan Hafetz, senior staff attorney with the ACLU Center for Democracy and professor at Seton Hall Law School, talked about how the Lafayette Square confrontation intersects with constitutional law and the significance of the physical space where the administration dispersed a peaceful protest. “It is noticeable that the administration did so in a park — which under First Amendment law is a traditional public forum where [those] rights are at their peak,” Hafetz said. He added that the administration appeared to target the protestors for their viewpoints, “an unquestionable violation of the First Amendment.” Hafetz said lawsuits have been filed on behalf of protestors alleging First and Fourth Amendment rights infringements.
Longtime D.C. rights activist and private practitioner Johnny Barnes emphasized that the forcible dispersal of a legitimate public protest was enabled by the District’s lack of statehood status. He said the Metropolitan Police and U.S. Capitol Police are, in fact, the most experienced to safely handle protestors, and pointed out that Congress, with its Article 1 powers, also restricts the District.
“What happened on June 1 was a demonstration of that exclusive police power that the president and Congress have over Washington, D.C.,” Barnes said. “So long as the District of Columbia is not a state, it is not on equal footing with the rest of America.”
In closing, Barnes said the key lesson of Lafayette Square is that “no one person is above the law. . . . And that is why I think it is important for the people from Idaho and Colorado and Missouri who came here on that fateful day of June 1 to appreciate that they shed their rights, and the only reason they shed their rights is because we are not a state.”
Speaking to the D.C. Bar after the webinar, Schneebaum mentioned the much-discussed concern about an imperial presidency. “Over the years we have given too much authority to the president simply to invoke the word ‘emergency,’ allowing him to do all sorts of things that the Constitution does not allow him to do,” Schneebaum said. “That is a topic not directly related to the status of the District of Columbia, but it certainly is a topic related to the Constitution and the future of this country.”
