Earlier this month, President Donald Trump declared a state of emergency in Washington, D.C., and took control of the Metropolitan Police. The move provoked a heated response from liberals and Democrats, who denounced it. House Minority Leader Hakeem Jeffries declared that Trump’s “plan to federalize Washington D.C.’s local police department … has no basis in law and will put the safety of the people of our Nation’s capital in danger.”
What the courts ultimately decide about Trump’s actions remain to be seen. Nevertheless, the federalization of the Metropolitan Police does have a “basis in law.” Indeed, the whole affair is a case study of how Congress, granted substantial power under the Constitution, has systematically outsourced it to the executive branch.
The Constitution grants Congress the power to “exercise Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States.” Anti-Federalists jumped all over this power, arguing it was a loophole for an unlimited grant of federal authority. Congress could build the instrumentalities of total control in the capital city, then tyrannize the population.
That argument never made much sense. The expansion of federal authority has mainly happened under other constitutional provisions, the Interstate Commerce and Necessary and Proper Clauses.
In Federalist 43, James Madison laid out the rather obvious case for a federal city:
“The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy.”
In other words, Washington D.C. is a kind of “patch” to American federalism. The Constitution grants only limited power to the federal government, the rest belongs to states, including the authority to police daily life in cities. If the federal government were located in a state, it would be subject to its laws. Federal sovereignty necessitated a federal seat.
Sitting in the background of the “Enclave Clause,” as it is known, is the Newburgh Conspiracy of 1783. A group of army officers schemed to march on Philadelphia to force the Continental Congress to grant them their back pay. George Washington famously broke up the coup attempt, but the vulnerability of the Congress remained a key matter. How can it exercise sovereign authority when it is subject to the laws of a state?
The location of federal district was more controversial than its creation. In 1789 Pennsylvania’s congressional delegation proposed locating it along the Susquehanna River, a move opposed by Southerners. Eventually, a deal was struck to locate the capital on the Potomac.
The original cession came from Maryland and Virginia, but in 1846 the Virginia portion – which includes Old Town Alexandria and Arlington – was “retrocessed,” or returned. This is why the city has the peculiar shape that it does, like a baseball diamond cut by the Potomac River. Likewise, the retrocession makes it difficult to appreciate the symbolic importance of the location of Congress, which was the focal point of the original design of the city. A vestige of that vision remains in the quadrants of the city, with Congress at the center, although today there is hardly any area in the southwest.
From 1874 until 1967, Washington, D.C. was governed by a three-person commission, whose members were originally appointed by the president. Later, one of those positions was reserved for an officer from the Army Corp of Engineers. In 1967, President Lyndon Johnson had the government reorganized into a nine-member council, all of whom were appointed by the president. Congress enacted the Home Rule Act in 1973, which created the current locally-elected mayor-council governance structure. Fiscal mismanagement in the 1980s led Congress to partly revoke home-rule authority. In 1995 Congress established a financial control board to monitor city finances and empowered a chief financial officer to right the fiscal ship. This arrangement worked well and was concluded in 2001.
President Trump cited the Home Rule Act as the legal basis for his federalization of D.C. police. Section 740 (a) allows, “whenever the President of the United States determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for Federal purposes, he may direct the Mayor to provide him, and the Mayor shall provide, such services of the Metropolitan Police force as the President may deem necessary.” In President Trump’s executive order, he cites “out of control” crime as the reason for his declaration of an emergency:
“[R]ising violence in the capital now urgently endangers public servants, citizens, and tourists, disrupts safe and secure transportation and the proper functioning of the Federal Government, and forces the diversion of critical public resources toward emergency response and security measures…”
Such lawlessness also poses intolerable risks to the vital Federal functions that take place in the District of Columbia. Violence and crime hamper the recruitment and retention of essential Federal employees, undermine critical functions of Government and thus the well-being of the entire Nation, and erode confidence in the strength of the United States.
The only requirement for the president under Section 740 (a) is to notify congressional leadership of his decision within 48 hours of his federalization of the Metropolitan Police. It does not enumerate the potential justifications for which the president may declare an emergency. After 30 days or the end of the emergency (whichever comes first), Trump must return power over the police to local government, unless the House and Senate approve a concurrent resolution authorizing its continuation. Such a resolution is subject to the filibuster rule in the Senate, so unless Democrats agree to an extension, power over the police will return to the local government in early September.
Whether a court rejects Trump’s declaration of an emergency remains to be seen. To date, district courts have aggressively policed Trump’s executive actions, but appellate courts and the Supreme Court have been more forgiving.
As a constitutional matter, Congress has the power to rule the District of Columbia, but practically speaking the legislature outsourced “emergency” authority to the president ago. Trump’s federalization of the Metropolitan Police is thus another example of the executive’s increasingly aggressive use of the sweeping statutory powers granted by Congress. Facing intractable gridlock in the legislature, presidents have increasingly turned to executive orders to achieve their policy goals, utilizing vague grants of power – such as Section 740 (a) in the Home Rule Act – to govern.
Jay Cost is the Gerald R. Ford Senior Nonresident Fellow at the American Enterprise Institute. He is the author of five books, most recently Democracy or Republic? The People and the Constitution (AEI Press, 2023).
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