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The Department of Homeland Security (DHS) intends to send around 150 federal agents to Chicago, the Chicago Tribune reported today. The plan is an escalation of the Trump administration’s efforts to crack down on protests and unrest in major U.S. cities.

The planned deployment comes amid national backlash over the use of federal agents in Portland, Oregon, where news reports and videos have shown the feds beating a nonviolent Navy veteran, shooting an unarmed protester in the face with an impact weapon, and using unmarked vehicles to snatch protesters off the street. Last night, federal agents tear- gassed a crowd of moms.

Camouflaged agents from Customs and Border Protection and the U.S. Marshals Service have been deployed to Portland—where protests and unrest over the police killing of George Floyd have been happening for more than 50 days—under a June 26 executive order to protect federal monuments and property. The Trump administration claims it is protecting the city’s federal courthouse and other property from “lawless anarchists” who have vandalized and attacked the building.

In a news conference this morning, Chicago Mayor Lori Lightfoot said she spoke with Portland Mayor Ted Wheeler on Sunday “to get a sense of what’s happened there.”

“We don’t need federal agents without any insignia taking people off the street and holding them I think unlawfully,” Lightfoot said.

Federal agents’ strong-arm tactics in Portland have led to a flurry of lawsuits, investigations, and demands for investigations from state and local officials. Colleen Connell, head of the Illinois branch of the American Civil Liberties Union (ACLU), warned that similar problems will arise in Chicago.

“Make no mistake: Trump’s federal troops will not be a constructive force in Chicago,” Connell said in a press release. “As our colleagues have seen in Portland, Trump’s secret forces will terrorize communities, and create chaos. This is not law and order. This is an assault on the people of this country, and the specific protections of protest and press in the First Amendment.”

The ACLU of Oregon sought a temporary restraining order last week against federal agents stationed in Portland, in what it says is the first of many lawsuits.

Oregon Attorney General Ellen Rosenblum announced Sunday that she is suing DHS, the U.S. Marshals Service, U.S. Customs and Border Protection, and the Federal Protection Service, alleging that “they seized and detained Oregonians without probable cause.”

The U.S. attorney for the District of Oregon—Billy Williams, a Trump appointee—has called for an inspector general to investigate the agents’ actions.

Oregon’s Democratic senators, Ron Wyden and Jeff Merkley, say they’ll be introducing an amendment to a defense bill to stop the Trump administration “from sending its paramilitary squads onto America’s streets.”

Sen. Rand Paul (R–Ky.) also criticized the use of federal agents.

We cannot give up liberty for security. Local law enforcement can and should be handling these situations in our cities but there is no place for federal troops or unidentified federal agents rounding people up at will. https://t.co/vkSHmlOzDW

— Senator Rand Paul (@RandPaul) July 20, 2020

Rep. Alexandria Ocasio-Cortez (D–N.Y.) and Delegate Eleanor Holmes Norton (D–D.C.) will also be introducing legislation this week that would require federal law enforcement officials to clearly identify themselves, The Nation reported today.

DHS did not immediately respond to a request for comment for this story. But in an interview on Fox News this morning, Acting DHS Secretary Chad Wolf said, “I don’t need invitations by the state, state mayors, or state governors to do our job. We’re going to do that, whether they like us there or not.”

Trump also indicated in a White House interview today that his administration may send federal agents to many more U.S. cities.

“We’re not going to let New York, Chicago, Philadelphia, Detroit, and Baltimore—Oakland is a mess—we’re not going to let this happen in our country,” Trump said. “More federal law enforcement, that I can tell you.”

“In Portland, they’ve done a fantastic job,” Trump continued. “These are anarchists. These aren’t protesters. These are people that hate our country, and we’re not going to let it go forward.”

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Last week, I blogged about a persnickety question that Supreme Court practitioners often litigate: when does a Supreme Court judgment become effect. In this post I will raise another curiosity of Supreme Court practice: the Justices use different language when a case is remanded to state court and federal court.

Consider the language used this term in Espinoza v. Montana Department of Revenue. This case reversed the decision of the Montana Supreme Court. The opinion concluded:

The judgment of the Montana Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Contrast that language with the conclusion in Liu v. SEC. This case reversed a decision from the Ninth Circuit:

For the foregoing reasons, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with this opinion.

State decisions are “remanded for further proceedings not inconsistent with this opinion.” Federal decisions are remanded for “further proceedings consistent with this opinion.” The former language seems stricter than the latter language. Perhaps the Court wishes to give the state courts more leeway in implementing a Supreme Court decision. Federal courts, in contrast, have less latitude to implement a Supreme Court decision.

I don’t know how or when this practice arose. But it seems to subtly account for basic principles of federalism. Of course, under Martin v. Hunter’s Lessee, state courts are bound by the Supreme Court’s judgments. At least the Justices can be nice about it.

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The AP explains why it is capitalizing “black” but not “white” when referring to people’s “race.”

There was clear desire and reason to capitalize Black. Most notably, people who are Black have strong historical and cultural commonalities, even if they are from different parts of the world and even if they now live in different parts of the world.

Nonsense. What do a Christian Kenyan, a Muslim Nigerian, a Rwandan Tutsi, an Ethiopian Jew living in Israel, an African-American of partial Native American and European heritage, and an Afro-Brazilian of mixed Portuguese and African descent have in common, culturally and historically? The correct answer is nothing. The only thing they have in common is ancestral roots in Africa, and dark skin.

With regard to whites, the AP continues:

White people generally do not share the same history and culture, or the experience of being discriminated against because of skin color. In addition, we are a global news organization and in much of the world there is considerable disagreement, ambiguity and confusion about whom the term includes.

There is, it’s true, ambiguity and disagreement about what “white” means. But that’s true of “black” as well. People deemed “black” in the U.S. are mostly of mixed ancestral origin, and would be called something else in other countries, including South Africa and Brazil. Researchers found that in one country, what we call “African American” or “black” in the U.S. has twenty-eight different names. Frederick Zhang & Joseph Finkelstein, Inconsistency in Race and Ethnic Classification in Pharmacogenetics Studies and its Potential Clinical Implications, 12 Pharmacogenomics Perspectives in Medicine 107 (2019).

Mizrahi Jews in Israel are sometimes called “blacks.” North Africans and Middle Easterners are often called (and call themselves) “black” in the UK. Should aboriginal Australians be referred to as “blacks?” Should Americans with one black and one non-black parent be called “black” or “multiracial?” Is Tiger Woods “black”?

I don’t have a strong opinion on capitalizing black or not. In the American context, the reason to capitalize is to make it akin to other ethnic groups, but that rationale has largely been supplanted by the popularity of African American. But regardless of how one feels about the issue, the AP’s claims that all people of African descent have historical and cultural commonalities is, dare I say it, racist, creating phony commonalities based on “race.” And the claim that “globally,” the scope of “white” is ambiguous but the scope of “black” is clear, is risible.

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“It’s nice,” Elizabeth Nolan Brown wrote this morning in a long piece about the federal police crackdown in Portland, Oregon, “to see some lawmakers actually attempting to use their power to stop this, instead of simply trying to score Twitter points with spurious allegations that libertarians aren’t freaking out enough.”

That hyperlink takes you to this tweet, from Sen. Brian Schatz (D–Hawaii).

Libertarians should be freaking out about Portland.

— Brian Schatz (@brianschatz) July 18, 2020

The senator’s legislative track record on the relevant issues certainly contains some schatz of its own (on which there will be a story here that I will hyperlink), but on today’s Reason Roundtable podcast, Nick Gillespie, Katherine Mangu-Ward, Peter Suderman, and Matt Welch do their level best to unpack the legality and propriety of local and federal government action (and sometimes inaction) regarding street scuffles and property destruction, and how the White House is reportedly poised to roll out Portland-style intervention across several American cities.

The team also breaks down the latest breakdowns of how federal Coronavirus responses broke down, tiptoe into the mask-policy wars, and build extended metaphors out of the movie Brazil.

Audio production by Ian Keyser and Regan Taylor.

Music: “Fog Mist” by TrackTribe

Relevant links from the show:

“Feds Send Outside Agitators To Escalate Conflict in Portland,” by Elizabeth Nolan Brown

“What’s Happening in Portland?” by Jonathan H. Adler

“ACLU Sues Federal Agents Deployed in Portland,” by C.J. Ciaramella

“Disturbing Reports from Portland,” by Keith E. Whittington

“Homeland Security Acting Like ‘An Occupying Army’ Says Sen. Wyden, After Federal Agents Shoot Peaceful Portland Protester,” by Elizabeth Nolan Brown

“Georgia Gov. Brian Kemp Is Suing Atlanta’s Mayor Over the City’s Mask Mandate. Good,” by Christian Britschgi

“Andrew Cuomo’s Coronavirus Response Has Been a Failure,” by Billy Binion

“What State and Local Governments Can Learn From the Coronavirus Crisis,” by Veronique de Rugy

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When John Lewis accepted the National Book Award in 2016 for a memoir about his time as a leader of the civil rights movement, he tearfully recalled that as a teenager in 1956 he was denied a library card. The library, he and his friends were told, was for whites only.

It’s a poignant moment, but it’s also a powerful reminder that, less than the span of one lifetime ago, racism in America was an institutionalized status quo enforced by governmental power to a degree that feels unthinkable today. Public libraries, public schools, public transit, and more were segregated as a matter of public policy. Challenging the fundamental injustice of those laws and institutions meant literally facing down the authority of the state.

Not being able to get a library card was only a small part of it. Lewis was jailed for more than a month in Mississippi in 1961 for the “crime” of using a public restroom marked “whites only”—one of more than 40 arrests during his lifetime. He had his skull fractured by a police officer during the violent break-up of a peaceful protest in Selma, Alabama, in 1965. That confrontation produced one of the iconic images of the civil rights era: Lewis, standing stoically with his hands stuffed in the pockets of his trenchcoat as police officers approach, batons in hand.

Lewis, who died on Friday at the age of 80, was a Democratic congressman from Georgia for the final 33 years of his life. But his greatest accomplishments came when he was a political outsider. As one of the youngest leaders of the civil rights movement, Lewis spoke powerfully against government-sanctioned injustice—and suffered for exercising his right to speak. He and his peers may not have eradicated racism from America, but they undoubtedly made the country a more free, more just place.

Indeed, Lewis’ life stands as a testament to the power of free speech and peaceful agitation as tools for creating progress within a democratic system. “I got in trouble. Good trouble. Necessary trouble,” Lewis remarked in 2013.

Lewis was living proof that such progress was possible without violence and without tearing down America’s foundations. He went from being a kid who couldn’t get a library card because of government-imposed racism to being a 17-term congressman who served alongside America’s first black president. In 2015, he was honored by President Barack Obama in a ceremony that took place on the very bridge where Lewis once had his head bashed in by a police officer.

“The Civil Rights Movement…did more to advance freedom within the United States than any other movement in the past century,” wrote Michael Cannon, director of health policy studies at the Cato Institute, in January, shortly after Lewis was diagnosed with pancreatic cancer. Lewis, he wrote, advanced human liberty “in his campaigns for individual rights, his advocacy for freedom in moral terms, his commitment to peaceful protest”; he helped expand everyone’s freedom “to speak, protest, vote, work, exchange, travel, and marry and procreate with African‐​Americans.”

His legacy is particularly important at the current moment, when debates over the role of racism—particularly when it is institutionalized within the criminal justice system—and the proper response to it are again at the forefront of American politics.

Lewis left no doubt where he stood on that. In one of his final interviews, he told The Washington Post‘s Jonathan Capehart that he was “inspired” by the peaceful protests against police brutality that have erupted this year—and that he viewed the militaristic response encouraged by President Donald Trump and some other officials as “a disgrace” that was “not in keeping with the best of America.”

This year has made it more clear, in ways both obvious and subtle, that Americans still have work to do to force their governments to live up to the promise of legal equality. But the widespread, institutionalized, overt segregation that Lewis experienced as a young man seems foreign and dystopian to most people living in America today. As it should.

For that, we should never forget Lewis and his peers, who spoke, worked, and bled to make America a more free and just nation.

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