In 2024, Donald Trump flipped tens of thousands of city dwellers from The Bronx to Philadelphia who were frustrated by lenient crime policies in blue cities and states. It’s understandable that the president wants to reward this emerging GOP constituency by showing instant progress. On Monday, the White House issued an executive order to punish jurisdictions that release criminal suspects without requiring them to post cash bail, and a separate order to prepare the National Guard for “rapid nationwide deployment,” including to cities beyond Washington, DC.
But just because urban crime is a real problem doesn’t mean that Trump can fix it by decree. Trump is exceeding his constitutional authority in attempting to circumvent the frustratingly iterative process of federalist democracy, which rarely offers political or practical shortcuts.
As with many things Trump, we are here because of abject Democratic failures. During the pandemic, much of America endured a rupture in personal safety and order. Reported homicides rose by a third between 2019 and 2022. Cities that seemed to have vanquished the bad old decades disintegrated in full national view: New York City’s murder level spiked 53 percent from near-record lows between 2019 and 2021, the sharpest increase in recorded history.
The summer 2020 riots, too, heightened voter fears. People who remember plywood Manhattan (stores boarded up against another night of window smashing), or who saw Minneapolis burn, can hold two perfectly compatible thoughts in their heads: just because there were peaceful protests in 2020 doesn’t mean there weren’t violent disturbances.
In much of the country, if not New York, rising violence in 2020 and 2021 was a sharp acceleration of existing trends; killings had been rising for a half decade. Moreover, even people who didn’t acutely fear being murdered had already noticed the gradual increase in pettier transgressions, with stores locking the toothpaste behind Plexiglass and drivers with fake plates blowing more red lights.
Crime and disorder, not coincidentally, exploded as high-profile cities, including San Francisco and New York, embraced new state and local policies to soften or altogether eliminate the consequences of committing many crimes — including, yes, reducing the use of cash bail to incarcerate suspects.
Democrats and their media allies and social-media surrogates for years ignored or minimized these failures and gaslighted the growing public anxiety. “Crime is much lower than it was in 1990,” we heard repeatedly, as if a 30-year-old, out-of-context benchmark could be a substitute for continued steady progress (never mind that no Democrat would ever argue that 1990 should serve as the singular barometer to track other ills).
“Crime is higher in red states,” we heard (and still hear). Democrats ignored a big reason for this disparity. People living in areas with higher population density have long demanded, and gotten, a lower crime rate, partly because they are more aware of crime’s impact. A person screaming threats on the subway can unnerve dozens of witnesses; scream on a rural road, and nobody will hear you.
“Crime happens for a lot of reasons,” we heard, “you can’t just blame bail reform.” Sure, but those other factors were unwitting arguments for far more careful reform of criminal-justice laws, not for throwing out decades of practice and hoping for the best. For example, serious mental illness is proliferating, perhaps because of growing pot use. So it isn’t a good idea to discard one imperfect tool of incapacitating the violently mentally ill — keeping them in jail before a trial — without creating another, better tool: boosting the capacity for long-term, in-patient mental-health treatment. Likewise, organized retail theft, abetted by Facebook, has spread, which means that it isn’t a good idea to diminish the consequences for stealing stuff from stores to feed this new market.
The latest Democratic argument is that crime is now falling, not rising. Good news, yes, but this line of reasoning ignores the impact of years of preventable trauma. This “mission-accomplished” take also ignores the fact that crime isn’t falling uniformly. Overall felonies in New York City, for example, as of mid-August, remain 29 percent higher than in 2019.
“As with many things Trump, we are here because of abject Democratic failures.”
Into this void of Democratic leadership slides Trump. As on immigration, tariffs, and federal budget efficiencies, the president wants quick results. One of his twin executive orders on Monday decreed that “federal policies and resources should not be used to support jurisdictions with cashless bail policies,” and directed the attorney general to compile a list of states and cities with such policies governing crimes that “pose a clear threat to public safety and order,” so that federal agencies can “suspend or terminate” their grants. The other order directed the Pentagon to “designate an appropriate number of each state’s trained National Guard members to be reasonably available for rapid mobilization” for “quelling civil disturbances and ensuring the public safety and order.”
But there’s a major difference between the president’s actions on immigration and trade and his actions on state and local disorder. Whether you agree or disagree with Trump’s tariffs and immigration measures, there’s no question that the federal government has substantial authority, under both the Constitution and statutory law, to govern these areas.
By contrast, state and local governments, not Washington, govern most crime and disorder. (The main exceptions are crimes that cross state or international borders.) The constitutional basis is clear. Article IV requires that states respect the “judicial proceedings of every other state,” thus implying that such proceedings will differ from state to state. A person who flees one state to escape prosecution for a serious crime is to be extradited “to the state having jurisdiction of the crime,” further solidifying state, not national, control. Moreover, Trump has no authority to revoke existing federal grants or restrict future federal funding based on a state’s criminal-justice laws. Congress, not the White House, sets conditions on federal grants.
The Founding Fathers had a practical basis for reserving most criminal-justice powers at the state and local level. States differ from one another, in everything from culture to geography to population density. The circumstances in which a person charged with homicide can make a self-defense claim, for example, can and should differ between a predominantly rural state, in which citizens know they are largely on their own, and an urban state, in which citizens know the police are stationed on the next block. Voters in a state with a well-funded public-health system may feel more comfortable releasing a chronic thief provided he attend rehab, and voters in a state with a sophisticated mental-health system may think someone arrested for punching a stranger may be better rehabilitated in a hospital rather than in a jail.
Enforcement, too, is better left to state and local officials. National Guard troops have a role in protecting people and property during real emergencies — after a hurricane, say, when a neighborhood is entirely depopulated and needs protection from looting. But Guardsmen and women can’t make the subtle daily distinctions that police officers must make.
A police officer regularly stationed at a Bronx subway stop may develop a knack for knowing which fare-beater to let off with a warning — a day laborer he knows, who has just forgotten his wallet — and which fare-beater to serve with a fine. A police officer patrolling a gang-plagued Brooklyn street may arrest one person for swigging from an open bottle of vodka, because he knows that that person was just released from prison for a violent crime. He may walk by another individual engaged in the same behavior, because he knows that that person is walking home from his father’s funeral.
That’s not to say that governors and state legislators always, or usually, get it right on creating and maintaining criminal-justice systems, or that city police get it right on enforcement. But the past few years have shown that state and local democracy is working, albeit slowly and imperfectly. In New York, for example, Gov. Kathy Hochul and the state legislature have tightened the criminal-justice laws several times, in part because the governor was threatened by a close Republican challenger in 2022 and will likely face a similarly close opponent next year. San Francisco voters threw out their progressive district attorney.
The democratic process at the state and local level is annoying, difficult, takes too long, and isn’t guaranteed to have a perfect or even a good result, but this doesn’t mean that the process is irrevocably broken. As with all issues of democratic governance, the question is: compared to what?
Trump isn’t powerless in nudging states in the right direction. The president could ask Congress to enact a bill similar to the Clinton-era “Cops on the Beat” program, which offered $8.8 billion in grants ($19.4 billion in today’s inflated dollars) to hire police officers. Congress could attach certain conditions to these grants, including requirements to report better data. The federal government could require state and local jurisdictions, for example, to report on what percentage of suspects arrested for nonviolent crimes and released on no or low bail go on to face re-arrest for similar and more serious crimes. New funding for in-patient and intensive outpatient mental-health treatment could require states and cities to report on the share of patients who are arrested for criminal behavior after release.
Trump has tapped into a problem, which is more than national Democrats have done. But acknowledging a problem, though critical, isn’t the same as fixing it.
