Our police deserve to be protected, but Congress proposes wrong idea

Our police deserve to be protected, but Congress proposes wrong idea
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The House of Representatives recently observed Police Week by passing the Protect and Serve Act. The vote, at 382-35, was as lopsided as the bill is misguided. Although paved with good intentions, the bill would duplicate state laws, erode federalism, and do little to advance its stated aim of supporting local police. The Senate should think long and hard about whether to follow the lower chamber’s lead.

Under the House bill, knowingly assaulting or attempting to assault a law enforcement officer causing “serious bodily injury” would be punishable by fines and up to 10 years imprisonment. Offenses that involve kidnapping or result in death could bring up to life in prison.

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The Senate proposal adopts the federal hate crime framework to proscribe “knowingly caus[ing] bodily injury to any person, or attempt[ing] to do so, because of the actual or perceived status of the person as a law enforcement officer,” and carries the same penalties.

While both intend to address the tragic rise in targeted ambush attacks against police, neither would meaningfully help to resolve that problem. Federal laws already reach any assault that the government would have a compelling reason to prosecute, such as attacks on federal property or against federal employees, including federal law enforcement officers.

All 50 states, meanwhile, criminally punish attacks against state or local police officers. The odds are nil that any state or locality would refuse to prosecute such crimes. After the fatal ambush of Gilchrist County, Fla., police officers Noel Ramirez and Taylor Lindsey in April, Gov. Rick Scott “committed all state resources the sheriff’s office may need,” saying “we have zero tolerance for violence, especially against the police.”

Surely, every other governor would agree. So would any reasonable state legislator, and at least Arizona, Louisiana, Kansas and Texas, have already raised their state criminal penalties for attacking police. Not only is the Protect and Serve Act unnecessary as a policy measure, but it also exceeds Congress’s constitutional authority.

Congress purports to rely here on its authority under the Interstate Commerce Clause to regulate business “among the several states.” But that authority does not extend to assaults against local police officers. Georgetown law professor Randy Barnett argues that the clause was intended to address “the manner by which people may exchange or trade goods from one state to another” and “to remove obstructions to domestic trade erected by states.”

The Protect and Serve Act is so remote from those concerns that George Mason University law professor Ilya Somin described it as “an unconstitutional attack on federalism.” Defenders of this legislation might point to Heath v. Alabama, a 1985 case in which the Supreme Court condoned successive prosecutions, in instances where the federal government decides that a “state prosecution has not vindicated a violation of the ‘peace and dignity’ of the federal government.”

But the decision in Heath noted that “the Constitution leaves in the possession of each state ‘certain exclusive and very important portions of sovereign power,’” emphasizing “the power to create and enforce a criminal code,” and “the historic right and obligation of the states to maintain peace and order within their confines.”

In the 1995 case United States v. Lopez, striking down a federal ban on gun possession near schools, the Supreme Court expressed “a distinction between what is truly national and what is truly local.” In the 2000 case United States v. Morrison, the Supreme Court nullified a federal cause of action for sexual assault victims because “the police power” is one “the Founders denied the national government and reposed in the states” for “the suppression of violent crime and vindication of its victims.”

The lesson from Lopez, Morrison and other cases, including NFIB v. Sebelius, which rejected the theory that the Commerce Clause authorized the ObamaCare individual insurance mandate, is simple: Not everything Congress wants to pile atop the Constitution “belongs.” Several organizations created a criminal law “checklist” for legislators to assess whether new federal criminal laws belong in the U.S. Code. The checklist clarifies that there is no justification for the Protect and Serve Act.

Still, Orrin HatchOrrin Grant HatchLighthizer to testify before Senate next week as trade war ramps up Senators introduce bipartisan bill to improve IRS Senate panel advances Trump IRS nominee MORE (R-Utah) who introduced the Senate bill, is right to say that Congress should do all it can to protect police. Congress was right to establish Police Week in 1962, and it was right to issue its 2018 resolution. It is right to support police with equipment, grants, research and training programs. While Congress can also enact the Protect and Serve Act, the Constitution’s limitation on federal power means that it may not, and the priority of sound policy indicates that it probably should not.

John Michael Seibler is a legal fellow focused on criminal justice at the Institute for Constitutional Government at The Heritage Foundation.