05/16/2018
VOTE ALERT: House Liberty Caucus statement on , Protect and Serve Act of 2018
May 16, 2018
The House Liberty Caucus urges opposition to H.R. 5698, Protect and Serve Act of 2018. This bill creates a new federal hate crime that violates the Constitution and furthers the dangerous federalization of criminal law.
H.R. 5698 makes it a federal crime to injure or attempt to injure a law enforcement officer. The bill includes state and local law enforcement, despite the Tenth Amendment’s reserving exclusively to the states the authority and responsibility to prosecute such offenses against their officers. Although the offense must have some connection to, or otherwise affect, interstate commerce, that requirement does not significantly narrow the range of covered offenses or avoid the constitutional violation. 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. 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.
H.R. 5698 continues the federalization of criminal law, which is dangerous in part because it allows the federal government to charge individuals with crimes that the state or locality has already addressed. This allows the federal government to supplant the local understanding and administration of justice, and it allows someone to be prosecuted twice for the same crime, violating basic principles of justice and fairness. This is not just a theoretical concern: H.R. 5698 specifically allows for federal prosecutions when a verdict has already been handed down in a state prosecution.
By creating a separate crime for offenses against law enforcement, H.R. 5698 violates the Constitution’s guarantee of equal protection by literally giving police officers greater protection under the law than is afforded to people in other occupations.
For all these problems, H.R. 5698 provides no policy benefit. Every state already criminalizes this conduct, often with sentencing enhancements or separate crimes for harming police, and crimes against police are aggressively prosecuted by states.