Use of Potatoes to Block the Maine-Canada Border, 81-64
| Decision Date | 23 December 1981 |
| Docket Number | 81-64 |
| Citation | 5 Op. O.L.C. 422 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Use of Potatoes to Block the Maine-Canada Border. |
A number of federal statutes might justify federal intervention in the event Maine potato farmers seek to block highways at border crossings in northeastern Maine to prevent the importation of potatoes from Canada, or attack federal officers or property at the United States-Canada border. Federal intervention might take the form of direct law enforcement activity by federal executive officials, or a judicial injunction against persons seeking to obstruct the passage of interstate commerce and the mails.
In extreme situations, the President may call out the National Guard or the Army to put down rebellions in states that threaten the enforcement of federal law.
Federal law enforcement officers have no special authority to make arrests for violations of state law, and they can act in this regard only as private citizens.
The Attorney General is the chief civilian officer in charge of coordinating all federal governmental activities relating to civil disturbances. Generally, because the statutory and constitutional scheme of our government leaves the protection of life and property and the maintenance of public order largely to state and local governments, the Attorney General has pursued a policy against commitment of federal forces until advised by the appropriate state officials that the situation is beyond their control.
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENTIn response to pressure from Maine potato farmers threatened by competition from Canada, Maine's Department of Agriculture has issued regulations which require inspectors inspection fees, and permits for all potatoes entering the state. Because the regulations appear on their face to offend the Commerce Clause of the Constitution, the Justice Department sued in federal court to have them struck down. United States v. Maine, No. 81-0458 P (D. Me., filed Dec. 7, 1981). On Tuesday, December 8, Judge Edward T Gignoux, Chief Judge of the United States District Court for the District of Maine, denied the federal government's request for a temporary restraining order. Following a hearing on December 21 and 22, Judge Gignoux granted the motion for a preliminary injunction yesterday afternoon. Unless the state voluntarily withdraws the regulations within the next few days, the judge has said that he will enter a final injunction by next week. The preliminary injunction is enforceable against the named defendants—the State of Maine the Governor, his Attorney General, and the State's Department of Agriculture—and their agents. Fed.R.Civ.P 65(d). [ 423]
This responds to your request for information on the options available to the U.S. Attorney General and the President should Maine farmers, individuals not covered by the injunction, attempt to thwart the effect of the injunction by obstructing highways on the Maine-Canada border.
Assuming the farmers follow the same pattern as their last demonstration in 1980, they will use potatoes, trucks, and other heavy equipment to block the highways at border crossings in northeastern Maine.[1] In 1980, when nine border stations over a 100-mile stretch were involved, two arrests were made on the first day of the demonstration by the state police.[2] Border traffic was rerouted to other crossings. The protest ended after two days when then Vice President Mondale promised to set up a task force to study the problem. We will assume for the purposes of this memorandum that state officials are unable or unwilling to intervene to end the protest.
If the farmers stage a low-key demonstration—merely dumping the potatoes and milling about—there may be no overt threat to either federal officers or to federal land or property at the border crossings themselves. In 1980, some potatoes apparently did roll under the canopies of the Customs Service sheds, but they were removed without incident. The demonstration could escalate, however, to the point where a mob threatens harm to Border Patrol or Customs Service agents and federal facilities. In 1980, for example, a state police officer inflicted a serious head wound on a farmer.[3]
Identifying federal statutes in this context is difficult. The statutory and constitutional scheme of our government leaves the protection of life and property and the maintenance of public order largely to state and local governments. Only when civil disorder grows beyond a state's ability to control or threatens federal rights does the federal government generally intervene. The following statutes may become [ 424] applicable, depending upon what course the fanners and state officials take.
Highways in the United States are owned by the states, even though often built in large part by federal funds, and are, therefore, generally under state jurisdiction.[4] Blockage of a state highway is not usally a matter of federal concern. However, federal law prohibits interference with the right to travel. 18 U.S.C. § 241, [5] and 42 U.S.C. § 1985(3).[6] Private conspiracies to harm travelers and obstruct their passage have been prosecuted under these acts. See Griffin v. Breckenridge, 403 U.S. 88 (1971); United States v. Guest, 383 U.S. 745, 757-60 (1966). In 1974, the United States obtained indictments of persons participating in a coordinated truckers' strike that was intended to interfere with the interstate travel rights of non-striking truckers.[7]Federal law also prohibits, during a civil disturbance, the injury, intimidation of, or interference with anyone engaged in interstate commerce. 18 U.S.C. § 245(b)(3).[8]
It is also possible that the potato farmers might fall afoul of the Sherman Act's antitrust provisions, [9] since they are acting in concert in an effort to restrain trade.
If an unruly mob attacks Canadian drivers, we could consider initiating prosecutions under 18 U.S.C. § 245(b)(2)(E), which makes it unlawful to injure, intimidate, or interfere with "any person because of his . . . national origin and because he is or has been . . . traveling in or using any facility of interstate commerce." Likewise, the use of extortion to obtain compliance from other farmers or Canadians might violate 18 U.S.C § 1951(a), (b)(2). See also 18 U.S.C. § 1952(a)(2), (b)(2). [ 425]
Because of the burden that obstructions on the highway place on interstate commerce, the United States can either go into court to obtain an injunction against any impediment to the passage of interstate or foreign commerce and to delivery of the mails, In re Debs, 158 U.S. 564, 581-83 (1895), or can choose to use force. Id. Debs involved a major strike against the Pullman Co. that attempted—often, it was alleged, by violence—to shut down several interstate railroads. The United States, noting that mail, foodstuffs, fuel, and passengers were all carried by the railroads, obtained an injunction against "any" person who attempted to interfere in any manner with the named railroads. Id. at 570. When Eugene Debs, jailed for contempt of this order, sued for a writ of habeas corpus, the Supreme Court explicitly chose, id. at 600, to rest its denial on the broad ground of the federal government's inherent authority to enforce its jurisdiction "over every foot of soil within its territory and [to act] directly upon each citizen . . . ."Id. at 599. "[I]n the exercise of those powers it is competent for the nation to remove all obstructions upon highways, natural or artificial, to the passage of interstate commerce or the carrying of the mail . . . ." Id. There is a statute explicitly prohibiting obstruction of the mail. 18 U.S.C. § 1701.[10]
Several statutes protect federal officers and property. During a civil disorder—a public disturbance by more than three people involving acts of violence, 18 U.S.C. § 232(1)— it is a felony to impede a law enforcement officer in his official duties. 18 U.S.C. § 231(a)(3).[11] Assault on or resistance to customs and immigration officers is specifically forbidden, 18 U.S.C. § 111, [12] as are rebellions against the authority of the United States, 18 U.S.C. § 2383, [13] and [ 426] willful injury to United States property, 18 U.S.C. § 1361, [14] or certain kinds of communications equipment, 18 U.S.C. § 1362. Arrests may be made by the Federal Bureau of Investigation (FBI), 18 U.S.C § 3052, United States Marshals, 18 U.S.C. §3053, and Secret Service agents, 18 U.S.C. § 3056. (Note that Immigration and Naturalization Service (INS) agents may only arrest for violations of the immigration laws, 8 U.S.C. §§ 1324(b), 1357, and customs officers are generally limited to arrests for violations of the customs laws, unless armed with a warrant. 19 U.S.C. § 1581(0; 26 U.S.C. §7607(2)).
In extreme situations, the President may call out the National Guard or the Army to put down rebellions that threaten enforcement of federal law, 10 U.S.C. §332, [15] and to protect against deprivations of constitutional rights caused by failure to enforce state or federal law. 18 U.S.C. §333.[16] The application of these two statutes is explored fully in "The Use of Military Force Under Federal Law to Deal with Civil Disorders and Domestic Violence" (1980), a Department of Justice manual based in large part on the work of former OLC Deputy Assistant Attorney General Lawton.
"We think it clear that the FBI has no federal authority to take action with respect to violations of state law, even in...
To continue reading
Request your trial