Donald Trump has a longstanding infatuation with police violence. In a 1989 advertisement he purchased in the New York Daily News, Trump called for the execution of the so-called Central Park Five (they now go by the Exonerated Five) and demanded that politicians restore power to the police: “Unshackle them from the constant chant of ‘police brutality’ which every petty criminal hurls immediately at an officer who has just risked his or her life to save another’s.” In 2017 Trump told New York police officers not to be “too nice” when arresting people. In 2020 he said that state violence against those protesting the murder of George Floyd was “a beautiful thing to watch.” On the campaign trail in September of this year, Trump called for “one real rough, nasty” and “violent day” by police to end crime “immediately.” And he has promised that in a second term he would stop out-of-control crime and “restore law and order.”
Now that Trump has been reelected, can he bring his Purge–like fantasies to fruition?
There are, thankfully, some limits to what a second Trump administration can accomplish, at least when it comes to policing. Our approximately 18,000 law enforcement agencies are governed primarily by local and state law, without direct federal control over what they do. Yet Trump can take several steps to unshackle police: he can short-circuit current efforts to bring federal oversight to local law enforcement, and he can use the power of the purse, executive orders, judicial appointments, legal protections, and the military to advance his agenda.
Below, I explore how the second Trump administration could leverage its authority in each of these areas, and what can be done to resist these efforts.
The Department of Justice
Trump can hamstring the power of the Department of Justice (DOJ) to investigate and sue troubled police departments. In 1994 Congress empowered the DOJ to investigate law enforcement agencies for systemic constitutional violations. Since that time, the DOJ has investigated scores of departments for unconstitutional stops and searches, racial bias, excessive force, and other constitutional violations. These investigations, though not a panacea, typically end with negotiated settlements and court-appointed monitors overseeing wide-ranging reforms that have meaningfully improved agencies.
When Trump entered the White House the first time, he made clear that he would not be pursuing any further investigations of police departments, and his attorney general walked away from the DOJ’s findings of unconstitutional policing in Chicago and Baltimore. Ultimately, the Illinois attorney general stepped in and entered into a consent decree with Chicago, and a federal judge in Baltimore wouldn’t let Trump have his way.
President Biden’s DOJ opened investigations of twelve police departments during his term but has yet to enter into binding settlement agreements with any of them—lagging far behind President Obama’s record in this area. Presumably, Trump’s DOJ will stop pursuing the Biden DOJ’s investigations of these departments altogether—ceasing efforts to improve policing in Minneapolis and Louisville, among other places—and end the prospect of future federal investigations for the time he is in office.
287(g) agreements
If Trump is going to make good on his promise to launch the “largest deportation effort in American history” in his second term—of up to 20 million people—he will need the cooperation of state and local law enforcement. This cooperation would likely come through the 287(g) program, which allows U.S. Immigration and Customs Enforcement (ICE) to partner with state and local law enforcement, empowering officers to question, arrest, and detain people for deportation. In his first term, Trump aggressively pursued 287(g) agreements—he issued an executive order calling for such agreements in his first month in office and his 287(g) program grew to be five times bigger than it had been in the Obama administration, with more than 140 active 287(g) agreements. Biden promised but failed to end the 287(g) program.
Trump will almost certainly aim to expand the program’s reach further in his second term. And if past is precedent, the Trump administration will have no qualms about entering into 287(g) agreements with sheriffs and other law enforcement agencies that use excessive force, racially profile, and detain people in inhumane conditions. Because Trump will almost certainly end the DOJ’s investigations of law enforcement agencies, these types of abuses will go unchecked by the federal government.
Legislation
Although the federal government does not control state and local law enforcement rules and priorities, the federal government provides hundreds of millions of dollars each year to local and state law enforcement, and legislation backed by Trump can condition that funding on adoption of his preferred policies. For example, Trump has promised to condition federal grants to law enforcement agencies on their adoption of stop-and-frisk, strict enforcement of gun and drug laws, and participation in mass deportations. Trump has also told advisors that he wants to strip police funding from cities that he believes “disempower” their police departments.
Trump can also support legislation aimed at further protecting officers from the consequences of their actions—although one of his campaign promises in this regard seems ineffectual and the other seems impossible. Trump has promised that the federal government will “indemnify” the police—meaning, presumably, that the federal government would pay any settlements or judgments entered against law enforcement. Yet, as it stands, state and local indemnification laws and policies mean that police officers are virtually never held personally responsible for settlements and judgments entered against them. Trump has also promised to make police “immune from prosecution.” But it is hard to imagine how the federal government could constitutionally override local prosecutors’ decisions to press criminal charges against police.
Trump and a Republican-led Congress could enact legislation codifying qualified immunity—a defense that protects officers from liability when they are sued for money damages, even if they have violated the Constitution, if they did not violate “clearly established law.” But it is unclear if this will be a priority for a second Trump administration; although Trump opposed the elimination of qualified immunity in 2020, the doctrine has not played a leading role in his 2024 campaign.
Executive orders
Unless and until Congress acts on Trump’s law-and-order legislative priorities, Trump can enact executive orders without the approval of Congress. For example, when the George Floyd Justice in Policing Act failed in Congress, President Biden signed an executive order that advanced several of its provisions—among them limiting the use of force by federal law enforcement; limiting the transfer and purchase of military equipment by state and local police; offering financial assistance to state and local governments to develop alternate response programs, so that trained mental health professionals could be called upon to respond to people in crisis; and creating a national registry of officers fired for misconduct.
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Trump is no stranger to this power. He issued an executive order in June 2020, weeks after the murder of George Floyd, that banned chokeholds and awarded federal dollars to law enforcement agencies that partnered with social workers to respond to nonviolent calls. Given Trump’s campaign promises regarding policing, it is hard to imagine that he would sign a similar executive order in his second term. Instead, Trump will likely rescind Biden’s order when he takes office and enact his own that expands the power of federal law enforcement officers and awards federal grants to state and local agencies that adopt his preferred policies.
Judicial appointments
Trump can influence the future of policing and police reform through the appointment of federal judges sympathetic to his worldview. In his first term, Trump appointed more than 200 judges to the federal bench and 3 Supreme Court justices. Now, with 4 more years in office, Trump will have many more lower court vacancies to fill, and as many as 3 Supreme Court vacancies that could ensure a conservative supermajority for decades to come. Although some Trump-appointed judges have been critical of qualified immunity, the bulk of Trump-appointed judges and justices will likely be hostile to these types of claims—viewing constitutional rights narrowly and qualified immunity and other protections of government power broadly.
Deploying federal law enforcement and the military
The Posse Comitatus Act, signed in 1878, limits the power of the federal government to deploy its military to enforce domestic policies. But Trump apparently wanted to invoke the Insurrection Act—an exception to the Posse Comitatus Act—during protests in the summer of 2020, in the aftermath of Floyd’s murder, and again following his election defeat. Instead, Trump and attorney general William Barr found a loophole in the act—allowing the use of federal troops for “training” purposes—to justify deployment of military personnel in Washington, D.C. Trump also deployed federal law enforcement officers to cities around the country, sometimes appearing at protests or outside federal buildings in camouflage and unmarked vehicles. Trump also deployed federal immigration agents to arrest people outside state courthouses and other so-called sensitive places.
During his second presidential campaign, Trump repeatedly threatened to deploy federal agents and the military to defend the border and purge “the enemy from within.” As Trump said: “We have some very bad people. We have some sick people, radical left lunatics. And I think they’re the big—and it should be very easily handled by, if necessary, by National Guard, or if really necessary, by the military, because they can’t let that happen.” We will soon learn whether to take this claim seriously or literally—whether this was an expression of bluster or of intent to flout the Posse Comitatus Act. If the latter, we can’t say we weren’t warned. In his victory speech, Trump declared that he would “govern by a simple motto: Promises made, promises kept.”
In the waning days of the Biden administration, the federal government can take several steps that would limit the impact of a second Trump administration. The DOJ can negotiate settlements in its open investigations of police departments. The Senate can confirm federal judges to fill existing vacancies. Congress can strengthen the Posse Comitatus Act to make it more difficult for Trump to deploy the military. But because state and local governments currently play—and will continue to play—the dominant role in day-to-day policing, whether police are “unshackled” during the second Trump administration will turn primarily on decisions made at the state and local level.
Some of states’ and localities’ decisions will be in direct response to Trump administration initiatives. For example, local governments will need to decide whether to agree to institute stop-and-frisk in exchange for federal funding. Communities can oppose legislation that requires local law enforcement agencies to cooperate in the 287(g) program, and can vote out sheriffs who have been willing participants in these agreements. During Trump’s last administration, some state and local governments successfully challenged Trump’s deployment of federal agents and conditioning of federal dollars on the adoption of presumptively unconstitutional policies. All signs suggest that they will again, at least in blue states and cities.
Other decisions will fall squarely within states’ and localities’ purview. States can enact their own legislative reforms concerning the use of force, officers’ obligations to intervene to stop police misconduct, and police misconduct reporting and decertification—as did more than thirty states in the wake of the Floyd uprisings. States can authorize their attorneys general to investigate systemic misconduct in law enforcement agencies, as have California, Colorado, and Illinois. Local governments can develop alternative responder programs in partnership with mental health providers. In negotiating collective bargaining agreements with law enforcement agencies, local governments can push for better policies, training, transparency, and accountability.
Organizing and advocacy at the state and local level will be critically important, then, to influence state and local legislators’ and policymakers’ priorities and proposals. And when state and local police violate the law, civil rights litigation will be a crucial mechanism to seek redress. If Trump’s encouragement of stop-and-frisk—or wishful thinking about a “violent day” of policing to end crime—inspire officers to harass people or use violence in ways that violate the Constitution or state law, people can bring lawsuits to challenge that conduct. Given the infrequency with which police are disciplined by their departments or are criminally prosecuted, civil rights suits are often the only way to get some measure of justice when police violate the law. There are many barriers to relief in civil rights cases against state and local law enforcement officers; the Supreme Court’s current crabbed interpretation of the Bivens doctrine makes suits against federal law enforcement officials—and against local law enforcement officers deputized to act with federal authority—nearly impossible. Judges appointed by Trump will presumably be unsympathetic to these cases, making them even more difficult to bring. But given the presumed collapse of the DOJ’s Civil Rights Division and anticipated heightened aggressiveness of police, these suits will, in some cases, be a last best hope.
A second Trump administration makes clear that federal avenues to greater police accountability will be firmly shut for the next four years. But we’ve seen this movie before: advocacy, organizing, and litigation did put important checks on Trump’s worst excesses the first time around. And the nationwide protests against police violence happened under his watch, awakening a new generation to a status quo in policing that’s simply unsustainable. The next four years could bring a yet deeper understanding of what needs to change—and how we, through our state and local governments, can play a meaningful role in keeping the police in check.
Image: Colin Lloyd/Unsplash/Inquest
