President Trump took to his favorite social media platform Tuesday night, threatening to send federal agents to Chicago to quell a brief uptick in street crime.
If Chicago doesn't fix the horrible "carnage" going on, 228 shootings in 2017 with 42 killings (up 24% from 2016), I will send in the Feds!
— Donald J. Trump (@realDonaldTrump) January 25, 2017
It’s a flashback to Trump’s speech at the Republican National Convention, when he cherry-picked data showing homicides on the rise in large cities when, in fact, the long-term trend is a steady rate of decline.
For those of us who lived through the early years of the Obama administration, however, when many conservatives claimed that virtually anything the former president said or did violated the Tenth Amendment, there’s a great deal of irony in Trump’s threat. Sending federal agents to address non-economic crimes of violence, in the manner that Trump suggests, actually does violate the Tenth Amendment.
Briefly speaking, the Constitution includes a laundry lists of powers that the federal government is allowed to exercise — and, in the Tenth Amendment’s words, all other powers “are reserved to the States respectively, or to the people.” The broadest federal power is Congress’ ability to “regulate commerce . . . among the several states,” which gives the national government broad authority over economic matters.
But the federal government’s power over non-economic matters, including violent crime, is far more limited. Thus, in United States v. Morrison, the Supreme Court struck down a provision of federal law providing that someone “who commits a crime of violence motivated by gender . . . shall be liable to the party injured.” Violent crimes can be horrific, but they are generally beyond the federal government’s power to regulate and must be addressed by state law. That’s why Trump cannot simply “send in the Feds” to deal with local violent crimes.
It’s also why those of us who remember President Obama’s first term might be experiencing whiplash after reading Trump’s tweet. The notion that Congress’ power to regulate commerce is narrow — and that the narrowness of this power is an essential safeguard against tyranny — was at the heart of the legal case against the Affordable Care Act.
Most of the Tenth Amendment arguments raised by Obama’s opponents were, frankly, ridiculous — Trump’s energy secretary nominee Rick Perry even argued that Social Security, Medicare, and Medicaid violate the Tenth Amendment — but these Tenth Amendment arguments were one of the defining features of the early opposition to President Obama. And now Trump has managed to stumble upon an actual, genuine violation of the Tenth Amendment just five days into his presidency.