Trump’s campaign to use federal force to enhance public safety lacks constitutional authority, writes Andrew Napolitano.
President Donald Trump visits law enforcement and members of the National Guard at the U. S. Park Police Anacostia Operations Facility on Aug. 21 in Washington, D.C. (White House /Daniel Torok)
“It is (my) intention to … demand recognition of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people. All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.”
— President Ronald Reagan, First Inaugural Address, Jan. 20, 1981
When I heard President Ronald Reagan utter the words above, my heart leapt with joy. I couldn’t imagine a modern-day president recognizing the sovereignty of the states and understanding their role in the creation of the American republic. If I had been the scrivener of that address, I’d have added “and the powers that the states gave away to the feds they can take back!”
Oh, how the presidential attitude has changed.
Last week, President Donald Trump purported to order the states to reform their policies on bail so as to incorporate a variant of pre-conviction incarceration. He also ordered them to prosecute people for burning their own flags. His own observations have apparently caused him to conclude that bad people — including flag burners — should be picked up off the streets, incarcerated and kept there until trial. In another breath, he referred to the states as “agents” of the federal government.
Trump has been on a campaign to use federal force to enhance public safety. He may be right that many Americans would like to see him do this, but where is his constitutional authority to do so? In a word: NOWHERE.
Here is the back story.
The drafters of the Constitution wove into its fabric the concept of subsidiarity. This means that problems for government to solve should be addressed by the government closest to the problem and the people affected by it. As well, government should employ the least
assets needed, not the most available.
This is reflected in the Constitution by the reservation of powers to the states. When the first 13 states formed the federal government and when the succeeding 37 joined — some voluntarily and some literally with guns aimed at the heads of state officials — they did so embracing subsidiarity. Among the powers they knew they were not giving away to the federal government was the police power.
James Madison, the chief draftsman of the Constitution and the author of the Bill of Rights, insisted that the 10th Amendment declare that the powers not given away to the federal government are retained by the people and the states. Foremost among them is the police power — the power to regulate and enforce laws for the health, safety, welfare and morality of all persons in the states.
“Among the powers the states knew they were not giving away to the federal government was the police power.”
The federal government is one of limited powers. The Congress — unlike the British Parliament and American state legislatures — is not a general legislature. It cannot right any wrong or tax any event or insinuate the feds into any relationship or regulate any behavior it chooses. Congress may only legislate in the 16 discrete areas of governance articulated in Article I of the Constitution. And the president may only enforce the laws that Congress has enacted.
Trump is probably correct that most major American cities are poorly managed, overtaxed, unsafe and often unpleasant. But these problems are for the people in those cities and the legislatures of those states.
Madison made it clear, just because a problem is national in its scope does not make it federal in its nature. A national problem is one common to vast areas across America. A federal problem is one the governance of which is articulated and delegated to Congress in the Constitution.
If national problems can be transubstantiated into federal problems just because they are ubiquitous, then the Constitution is meaningless.
This system was crafted to prevent the accumulation of power in Washington. It was also crafted, a la Reagan, so you can vote with your feet. If you don’t like the taxes and regulations in Massachusetts, you can move to New Hampshire.
“If national problems can be transubstantiated into federal problems just because they are ubiquitous, then the Constitution is meaningless.”
Can the states criminalize burning your own flag, as Trump has demanded? They can ban dangerous fires, but only because of the smoke and flames not because of the ideas represented by the fuel. Justice Antonin Scalia — whom Trump has praised as his favorite Supreme Court justice and who voted with the majority in both Supreme Court cases invalidating flag burning statutes — opined that the flag stands for the idea that it may legally and constitutionally be destroyed; no matter who is offended thereby.
Now, back to bail.
In my career as a trial judge in New Jersey, I set bail for a few thousand persons. At that time, judges had the discretion and obligation to address the presumption of innocence, the seriousness of the alleged crime, the nature of the evidence against the accused, and the history and community ties of the accused, and then make an informed judgment about bail. Bail is not a privilege; it is a right guaranteed by the Eighth Amendment.
Today, a few state legislatures have removed judicial discretion in setting bail. State-mandated cashless bail — effectively pre-trial freedom with no posted bail — is demonstrably ruinous of justice and public safety, but it is a state issue and a national problem, not a federal one.
When the feds offer funds to the states, there are always strings attached. But those strings, the Supreme Court has ruled, must be related to the purpose of the funds and attached when the funds are offered; they cannot be added unilaterally afterward. Can the president hold back funds from a state because he dislikes its bail laws — funds promised and premised on strings not mentioning bail? In a word: NO.
Channeling Justice George Sutherland: If the provisions of the Constitution are not upheld when they pinch as well as when they comfort, they may as well be abandoned.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
DISTRIBUTED BY CREATORS.COM
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Laudable desires do not always (actually rarely) result in perpetually laudable actionable rules and laws; there are always unforeseen consequences. That is the reason that rule based systems like constitutions need to be revised as new conditions form in a changing world. Yes, cling tenaciously to workable systems, but measure laws and rules against outcomes and adapt to realities.
13 independent states formed a federal system in the narrow inhabited (by the constitution writers and adherents) lands of the Atlantic margins. Almost no roads. Hand carried communication. Population of independent farmers. No standing army. Limited policing structures. Horse and oxen delivery systems. Mixed currency systems…. That is not our present world.
There is great danger in redoing rules for changing realities and there is great danger in not adapting to changing realities. Our present world is so filled with utterly uncomprehended ‘newness’ and we are so far behind making functional adaptions that the odds of ‘getting it right’ are pretty poor, but the wisdom of the 18th century must be seen in its proper perspective not taken as absolutely fundamental. It very uncertain what we can make from the tatters and ad hoc repairs of the present ‘rule based’ order.
The problem we have is all our “public” institutions have been captured by private financial interests. AKA transnational corporations. They own our government and politicians. They get the policies they want through legalized bribery while the people are sidelined. We can’t compete with large financial donors so since the Supremes have decided money is speech, we the people are silenced. We are officially an oligarchy. Is you haven’t read the Gilens and Page Study published in 2014, now would be a good time.
I have to wonder if the Judge has recognized the errors of his youth. Reagan very obviously fooled a great number of Americans at the time with the invaluable (to Reagan and Reaganites) help from GHWBush, Bill Barr, the CIA, running drugs and a host of others.
I will not ask you age but I think it matters. After experiencing Nixon’s wage and price freezes I was damned sure no Reagan fan, believe me. I learned all I needed to know about the trickle down theory under Richard M Nixon. It was pretty bad.
Good to see you are still resisting and keeping up the pressure, have a nice weekend and stay safe!
Sorry, Judge. Anyone whose heart “leaps with joy” about Ronald Reagan is not on the same side as I am.