Congress Stands With the Blue, Against the Constitution

The lopsided House vote for treating assaults on cops as federal crimes is a bipartisan portrait in cowardice.

Last week the House of Representatives, by a margin of more than 10 to 1, approved a completely gratuitous, blatantly unconstitutional bill that would make assaulting a police officer a federal crime. The lopsided vote was a bipartisan portrait in cowardice that vividly showed how readily politicians forsake their oaths of office to keep their hold on power.

The Protect and Serve Act prescribes a prison sentence of up to 10 years for anyone who "knowingly assaults a law enforcement officer," thereby "causing serious bodily injury," or "attempts to do so." Such conduct is, of course, already illegal in all 50 states, and there is no reason to think local law enforcement agencies are reluctant to arrest and prosecute people guilty of it.

Nor does the problem addressed by the bill seem to be on the rise, notwithstanding all the overheated talk of a "war on cops." The number of law enforcement officers who are feloniously killed each year is small and volatile, but according to the FBI it dropped by 30 percent last year, and the average for the last 15 years (51) is lower than the average for the previous 15 (65).

In any event, the Constitution does not give Congress the authority to fight local crime, and the interstate angles mentioned by the bill are so oblique that they could justify federal prosecution of pretty much any assault (or attempted assault) on a cop. If the alleged assailant drove on an interstate highway or used a weapon produced in another state, for instance, that would be enough to make a federal case out of it.

"A tenuous connection to economic activity cannot transform a criminal law that has nothing to do with economic activity—and that is explicitly for the purpose of public safety—into a regulation of interstate commerce," the House Liberty Caucus noted before the vote. "If it could, the Commerce Clause would destroy the Constitution's design for a very limited federal role in criminal law enforcement, covering only a few crimes that are clearly federal in nature."

The Protect and Serve Act explicitly allows federal prosecution of someone who is acquitted in state court, or who is convicted but receives a penalty the Justice Department deems too light. According to the Supreme Court's "dual sovereignty" doctrine, such serial prosecutions do not violate the Fifth Amendment's ban on double jeopardy, but they clearly offend the principle of fairness embodied in that rule.

These issues should be familiar to anyone who has followed the debate over federal prosecution of hate crimes, which occur when the victim is picked "because of" his "actual or perceived" membership in a protected group. The Senate version of the Protect and Serve Act takes that analogy and runs with it, targeting assaults and attempted assaults committed "because of the actual or perceived status of the [victim] as a law enforcement officer."

Under that bill, someone who takes a swing at a guy he mistakenly thinks is a cop has committed a federal felony punishable by up to 10 years in prison—even if he misses. This approach, which takes a page from the "Blue Lives Matter" laws that at least four states have adopted in recent years, effectively punishes people not just for their conduct but for their anti-cop attitudes, just as hate crime statutes effectively punish people for their bigoted beliefs.

In addition to these problems, the possibility of federal felony charges based on garden-variety tussles between cops and people they detain, on top of state charges for assault and resisting arrest, gives police more leeway to abuse their powers. The Protect and Serve Act would protect and serve cops who hassle innocent people or use excessive force, giving them a new legal threat to use against their victims.

With 35 brave exceptions, these objections did not faze the House, where "Defend the Constitution" was no match for "Stand With the Blue."