Just in time for National Police Week, an opportunity to honor America’s heroic police officers, both chambers of Congress have introduced versions of the Protect and Serve Act, with the laudable aim of supporting police officers—but with the dubious means of federalizing local crimes.
The Protect and Serve Act, though well-intended, unfortunately would duplicate state law, exceed Congress’ limited authority, and erode federalism without offering much meaningful help to police officers.
The House version of the bill would make it a federal crime to knowingly cause, or attempt to cause, “serious bodily injury to a law enforcement officer.”
The bill carries fines and up to 10 years’ imprisonment—or up to life in prison if an offense causes an officer’s death or involves kidnapping or an attempt to kill or kidnap a police officer.
The Senate version of the bill is based on federal hate-crimes legislation and would make it a federal crime “to knowingly cause bodily injury to any person, or attempt to do so, because of the actual or perceived status of the person as a law enforcement officer.”
It, too, carries with it up to 10 years’ imprisonment, or up to life in prison if the offense results in death or involves kidnapping.
A recent rash of targeted assaults and killings of police officers underlies the Protect and Serve Act and must be taken seriously.
At this week’s 37th annual National Peace Officers’ Memorial Service, President Donald Trump aptly said, “We must show appreciation, gratitude, and respect for those who police our streets and patrol our communities.”
He added, “We must end [the attacks on our police] right now.”
Sen. Orrin Hatch, R-Utah, who co-sponsored the Senate bill, cited Justice Department data showing increased reports of fatal ambush attacks on police officers in recent years.
By The Washington Post’s count, there were 21 in 2016, eight in 2017, and additional attacks have occurred this year. In April, two Gilchrist County, Florida, deputies—Sgt. Noel Ramirez, 29, and Deputy Taylor Lindsey, 25—were fatally shot while eating at a restaurant.
A candlelight vigil on the National Mall, held on May 13, honored 360 police officers who died in the line of duty, 129 of whom died last year. Their names now adorn the National Law Enforcement Officers Memorial alongside the names of all American police officers who have given their lives to protect their communities.
Congress is right to honor police officers who, as Hatch said, “put their lives on the line to protect us from harm.” Congress should “do all that [it] can to protect them,” he said.
But Congress can only regulate within its limited powers, no matter how desirable a policy may be, and the Protect and Serve Act exceeds Congress’ authority.
The Interstate Commerce Clause in the Constitution, which authorizes Congress “to … regulate commerce … among the several states,” is the presumptive constitutional basis for the Protect and Serve Act.
According to Georgetown law professor Randy Barnett, the Founders intended that clause to authorize Congress “to govern 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.”
Yet Congress has often abused that power to regulate matters traditionally seen as state and local concerns, and federalizing local crimes is a prime example of that unfortunate trend.
Congress has added countless criminal laws to the U.S. Code, including 450—about one new crime per week—between 2000 and 2007 alone. Many of those laws needlessly meddle in local police matters.
On a related note, several unions have long urged Congress to make it a federal crime to assault airline employees at airports. Never mind that assault is already a crime in all 50 states, and assault on federal property or against federal employees (including federal law enforcement officers) is a federal crime several times over (see 18 U.S.C. §§ 111, 113, 115, 118, 351, 1368, 1501, and 49 U.S.C. § 46504).
Nonetheless, in 2017, the U.S. Department of Justice acquiesced to requests from Congress and declared that a federal assault statute should be read broadly to punish the assault on any airport or air-carrier employees who have “security duties within [an] airport.”
Congress also enacted a federal carjacking law in response to increased violent carjackings, even though all states already vigorously enforce their own carjacking laws.
The sudden presence of a federal counterpart was mostly pointless. Yet, as former U.S. Attorney General Edwin Meese III has argued, federalizing local crimes like carjacking has not proven inconsequential.
It “invites selective prosecution, and disparate enforcement and punishment. Federal officials determine, usually on the basis of political factors, whether they will get involved in a case,” he said.
From threatening airline workers to harassing any pet—another local crime that federal legislators sought to punish, in the Pet and Women Safety Act of 2017—there seems to be no limit to Congress’ penchant for creating ever more federal crimes.
The U.S. Supreme Court has twice reminded Congress that the Commerce Clause should not be read to reach purely local, noneconomic criminal activity. (United States v. Lopez in 1995 struck down a ban on gun possession near schools, and United States v. Morrison in 2000 nullified a federal cause of action for sexual assault victims.)
That is also why The Heritage Foundation and several other organizations issued a “criminal law checklist for federal legislators,” which outlines criteria they should use to evaluate any proposal to enact new criminal laws. The checklist includes the following:
- Does the Constitution grant power to the federal government to criminalize the conduct?
- Is the conduct already prohibited by existing state or federal laws?
There are no uncontrived constitutional bases for the Protect and Serve Act. Every state has already criminalized all of the conduct that the bill would address, and states have the sovereign interest, ability, and political will to enforce their laws.
When Florida Gov. Rick Scott shared his condolences for the loss of officers Ramirez and Lindsey, he also “committed all state resources the Sheriff’s Office may need.”
“[W]e have zero tolerance for violence,” Scott said, “especially against the police.” No doubt governors in every other state feel exactly the same way.
So far as we know, there are no “sanctuary” jurisdictions for attacking police officers.
In fact, several states have increased the relevant criminal penalties in direct response to targeted attacks on police officers.
Congress deserves credit for its role in supporting police: It established National Police Week in 1962; it honored police in a related resolution this year; and Congress routinely authorizes a host of federal programming to support police officers, providing equipment, grants, research, and training.
Congress also supports state police when it focuses on helping federal law enforcement officers stop criminal enterprises that trigger true federal interests, such as large-scale drug cartels, human trafficking rings, and interstate fraud scams.
As for the local crimes addressed in the Protect and Serve Act, however, Congress can help state and local police by letting them handle those cases, and not making a federal case out of them.
