Did you know there is anarchy taking place in American cities?
President Trump issued a memo in which he instructs the federal government to identify which cities are “anarchist jurisdictions” and to withhold federal funds from such cities. Candidates include Seattle, Portland, New York, and Washington, D.C.
Let’s take a close look at the presidential memo and determine if it’s specific enough to act on, or so vague as to be meaningless.
Analyzing Trump’s memo
Here’s the text of Trump’s memo, with my commentary. I’ve elided some less interesting parts where indicated. I’ve added italics to draw attention to some of the vaguer parts of this argument.
Memorandum on Reviewing Funding to State and Local Government Recipients That Are Permitting Anarchy, Violence, and Destruction in American Cities
MEMORANDUM FOR THE ATTORNEY GENERAL
THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. It is the policy and purpose of the United States Government to protect the lives and property of all people in the United States from unlawful acts of violence and destruction. Without law and order, democracy cannot function. Americans cannot exercise their rights, including their rights to peaceful expression, assembly, and protest. Property is destroyed, and innocent citizens are injured or killed.
Unfortunately, anarchy has recently beset some of our States and cities. For the past few months, several State and local governments have contributed to the violence and destruction in their jurisdictions by failing to enforce the law, disempowering and significantly defunding their police departments, and refusing to accept offers of Federal law enforcement assistance. As a result of these State and local government policies, persistent and outrageous acts of violence and destruction have continued unabated in many of America’s cities, such as Portland, Seattle, and New York.
Describing Portland, Seattle, and New York as examples of “anarchy” is quite a stretch. Anarchy means “no government” — a general absence of any authority. But I am betting that if you murder your spouse in Portland or rob a liquor store in Manhattan, the police will pursue and prosecute you. None of these localities have stopped funding their police departments, and it’s up to the local authorities to request — or decide not to request — help from the National Guard or other federal law enforcement groups.
For example, for more than 3 weeks, beginning on June 9, 2020, the city of Seattle allowed anarchists and rioters to take over six square blocks of the city, an area the unlawful occupiers renamed the “Capitol Hill Autonomous Zone” and then the “Capitol Hill Occupied Protest.” Notwithstanding the fact that law-abiding citizens live and work in the invaded area, the local government effectively endorsed this lawlessness and taking of property by, among other things, abandoning the Seattle Police Department’s East Precinct building and forbidding the police force from intervening to restore order. Tragically, the Mayor allowed the unlawful occupation to persist until two teenagers were killed and at least two other persons suffered gunshot wounds. On July 1, Seattle declared the protest zone dismantled. But such failed leadership continues to harm the people of Seattle as, in recent weeks, rioters have engaged in violence and destruction of property across Seattle, resulting in at least 59 police officers being injured and multiple businesses and vehicles vandalized. . . .
The memo continues to describe similar “anarchy” in Portland [“State and local officials have allowed violent anarchists to unlawfully riot and engage in criminal activity on the streets, including the destruction of property”] and New York City [“State and local officials allowed looting to take place for over a week, resulting in damage to an estimated 450 businesses. As of August 16, there have been 896 shootings in New York this year, compared to 492 shootings during the same period last year. “]
The challenge here is twofold. First, local law enforcement is the responsibility of local police and authorities. The Federal Government has no jurisdiction and cannot be involved, unless the local authorities request help. Second, these descriptions are obviously cherry-picked to describe the most violent or shocking incidents. Activities in six square blocks of Portland hardly describe “anarchy” in the whole city. Gunshots in New York are not in the purview of the federal government, either.
Law enforcement has broad discretion to decide when and in which situations to enforce which laws. That discretion is not “anarchy.”
The Federal Government provides States and localities with hundreds of billions of dollars every year, which fund a wide array of programs, such as housing, public transportation, job training, and social services. These funds have been collected from American taxpayers who entrusted their money to the Federal Government to serve our communities and our citizens.
My Administration will not allow Federal tax dollars to fund cities that allow themselves to deteriorate into lawless zones. To ensure that Federal funds are neither unduly wasted nor spent in a manner that directly violates our Government’s promise to protect life, liberty, and property, it is imperative that the Federal Government review the use of Federal funds by jurisdictions that permit anarchy, violence, and destruction in America’s cities. It is also critical to ensure that Federal grants are used effectively, to safeguard taxpayer dollars entrusted to the Federal Government for the benefit of the American people.
Is Portland a “lawless zone?” If I break a window in Washington, D.C. and nobody comes after me, is that a reign of “violence and destruction?” There’s a definitional problem here.
I also question the action. How is withholding funds going to help these cities? While these sorts of enforcement mechanisms are included in some laws, there is no “anarchy exception” in the federal government’s requirement to spend funds appropriated for various purposes.
Sec. 2. Review of Federal Funds. To advance the policy set forth in section 1 of this memorandum, within 14 days of the date of this memorandum, the Director of the Office of Management and Budget (OMB) shall issue guidance to the heads of executive departments and agencies (agencies) for each agency to submit a report to the Director of OMB detailing all Federal funds provided to Seattle, Portland, New York City, Washington, D.C., or any components or instrumentalities of the foregoing jurisdictions.
There are a huge number of federal programs. It’s almost certainly impossible to create a full list of funds paid to these cities within 14 days. And why these four cities? Could it have anything to do with the fact that they are all in states or regions that vote consistently for Democrats?
What follows this is the most interesting part of the memorandum, a description of how you can tell that a city is an “anarchist jurisdiction.”
Sec. 3. Restrictions on Federal Grant Funding. To advance the policy set forth in section 1 of this memorandum:
(a) Within 14 days of the date of this memorandum, and updated as appropriate but no less than every 6 months thereafter, the Attorney General, in consultation with the Secretary of Homeland Security and the Director of OMB, shall publish on the Department of Justice website a list identifying State and local jurisdictions that have permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities (anarchist jurisdictions).
(b) In identifying anarchist jurisdictions, the Attorney General, in consultation with the Secretary of Homeland Security and the Director of OMB, shall consider, as appropriate:
(i) whether a jurisdiction forbids the police force from intervening to restore order amid widespread or sustained violence or destruction;
(ii) whether a jurisdiction has withdrawn law enforcement protection from a geographical area or structure that law enforcement officers are lawfully entitled to access but have been officially prevented from accessing or permitted to access only in exceptional circumstances, except when law enforcement officers are briefly withheld as a tactical decision intended to resolve safely and expeditiously a specific and ongoing unlawful incident posing an imminent threat to the safety of individuals or law enforcement officers;
(iii) whether a jurisdiction disempowers or defunds police departments;
(iv) whether a jurisdiction unreasonably refuses to accept offers of law enforcement assistance from the Federal Government; and
(v) any other related factors the Attorney General deems appropriate.
(c) Within 30 days of the date of this memorandum, the Director of OMB shall issue guidance to the heads of agencies on restricting eligibility of or otherwise disfavoring, to the maximum extent permitted by law, anarchist jurisdictions in the receipt of Federal grants that the agency has sufficient lawful discretion to restrict or otherwise disfavor anarchist jurisdictions from receiving.
If I’m reading this right, a city could be an “anarchist jurisdiction” if it fails to protect somebody’s house, fails to shut down a protest, reduces police funding, doesn’t let National Guard or federal troops in, or does anything else the Attorney General doesn’t like.
This is not an actual criterion. It’s impossible to measure. It’s just the whining of a President who is annoyed that someone other than him is determining policy in these cities.
This order will be struck down instantly in court — it’s an overreach, violating the constitutional role of the federal government, based on vague and unmeasurable criteria.
As Sam Berger, former OMB official under Obama, told the Washington Post, “This is a campaign document coming out of the White House,” Berger said. “Any actual restriction on funding in court will immediately be sued and almost certainly struck down.”
If you think theater is good governing, you might like this impotent and airy statement. If think the national government should respect local jurisdictions, not so much.