Contributor, The Volokh Conspiracy

Blue Lives Matter billboard.

Republican Rep. Ken Buck recently introduced the Blue Lives Matter Act, which would make violent crimes targeting law enforcement officers federal hate crimes. GOP Senator Jeff Sessions has promoted similar legislation. The proposed act is both unnecessary and dangerously unconstitutional. If enacted and upheld by the courts, it would seriously undermine constitutional limits on federal power.

I. Why the Blue Lives Matter Act isn’t Necessary.

My wife Alison Somin, who is a special assistant/counsel at the US Commission on Civil Rights, has a post criticizing the act, at the Federalist Society blog. As she points out, the proposed act is unusually sweeping, and there is no reason to believe that states fail to take crimes against police officers seriously, or that there is any need for federal intervention. While the act is inspired by the supposed “war on cops” that some conservatives claim has arisen over the last two years, the evidence shows that there has been no such general upsurge of violence against police. Police fatalities remain at levels similar to those of the last few years, which have been quite low by historical standards.

Many states already have laws imposing additional penalties for crimes targeting on-duty police. I think there is often good justification for such laws, as crimes against police undermine public safety, as well as harming their immediate victims. But states already pursue such crimes aggressively, usually more so than crimes targeting civilians. Police have obvious incentives to prioritize crimes targeting their fellow officers, and prosecutors have almost equally strong incentives to “throw the book” at perpetrators of such offenses, given their need to maintain good relations with the police whose assistance is essential to their pursuit of most other cases. There is, therefore, no need for federal intervention.

II. Why the Act is Unconstitutional.

In addition to the practical considerations raised by Alison, there is also a strong constitutional case against the Blue Lives Matter Act. Quite simply, Congress does not have the authority to criminalize essentially local violent crime committed against police officers (or anyone else). The most likely source of potential federal authority is the Commerce Clause, which gives Congress the power to regulate interstate commerce. Defenders of the Blue Lives Matter Act might argue that this authorizes the legislation, because crimes against police have effects on commerce.

But if Congress could regulate any activity that has some sort of indirect effect on commerce, its powers would be almost unlimited, as this is true of nearly all human activity. That sort of argument clearly goes against the text and original meaning of the Constitution, and would make many of Congress’ other enumerated powers superfluous. For example, if the Commerce Clause gives Congress the power to regulate anything affecting interstate commerce, it would not need a separate power to regulate international commerce or a power to declare a state of war, since both international commerce and warfare have major effects on interstate commerce.

In United States v. Morrison (2000), the Supreme Court ruled that a federal law targeting gender-based violence was unconstitutional because “[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity” whose aggregate effects on interstate commerce authorize the use of congressional authority under the Commerce Clause. It rejected the federal government’s Commerce Clause argument because endorsing it would “would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption. Indeed, if Congress may regulate gender-motivated violence, it would be able to regulate murder or any other type of violence since gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.” All of these points apply to violence targeting police officers no less than violence targeting women or men.

Morrison was to some extent undermined by the Court’s deplorable 2005 decision in Gonzales v. Raich, one of the worst Supreme Court Commerce Clause rulings ever. But even Raich did not repudiate Morrison’s holding with respect to congressional power over local violence.

Lower courts have upheld some parts of current federal hate crime laws targeting violence on the basis of race, gender, religion, and similar classifications under an expansive interpretation of Congress’ powers under the Thirteenth Amendment, which is often understood to target a wide range of “badges and incidents” of slavery, as well as actual slavery itself. In my view, this rationale for current federal hate crimes laws is extremely dubious. But even if it is sound, it clearly does not apply to the Blue Lives Matter Act. Even a very expansive view of congressional power under the Thirteenth Amendment cannot cover this case. No one can seriously argue that violence against police is a badge or incident of slavery, or that law enforcement officers are a historically oppressed minority group.

Those conservative Republicans who advocate the Blue Lives Matter Act are engaged in a particularly blatant example of “fair weather federalism.” They defend constitutional limits on federal power when it is politically convenient to do so, but elsewhere are willing to endorse legislation that would effectively gut such constraints. If the Blue Lives Matter Act passes and ends up getting upheld by the courts, it would likely be on the basis of an interpretation of the Commerce Clause broad enough to gut all or most remaining limits on federal regulatory authority.

In some ways, this proposal is even worse than most other outbreaks of fair weather federalism. It is, to some extent, understandable if people want to toss federalism considerations aside in order to address some important problem that states cannot or will not handle on their own. In this case, however, there is no such issue, because state and local governments are perfectly capable of prosecuting violent crimes against police, and have strong incentives to do so. Blue lives most certainly do matter. But not everything that matters must be the subject of federal legislation.

UPDATE: I should note that the lower court decisions upholding current federal hate crimes laws under the Thirteenth Amendment, referenced above, only covered cases involving racially motivated hate crimes. It is not yet clear whether they would apply the same logic to crimes motivated by gender or sexual preference. And even if they would, it would still be a stretch to include crimes against law enforcement officers, as well.

UPDATE #2: It is perhaps worth noting that the Blue Lives Matter Act is a proposed amendment to a provision of the Shepard-Byrd Hate Crimes Act, which includes a “jurisdictional element” that requires the government to prove that the crime in question involves the use of “a channel, facility, or instrumentality of interstate or foreign commerce,” was committed with a weapon that “weapon that has traveled in interstate or foreign commerce,” interferes with commercial activity, or “otherwise affects interstate or foreign commerce.”

This is clearly intended to make it easier to defend the act under the Commerce Clause. But I don’t think it does the job. Virtually any crime “affects interstate or foreign commerce” in some way. If A punches B, and B misses a day of work as a result, that is likely to reduce interstate or foreign commerce, at the margin. In 2014, a federal district court upheld a prosecution of a hate crime involving the use of shears and scissors because the implements in question were weapons that had “traveled in interstate or foreign commerce.” For reasons that Jonathan Adler outlines here, the court’s decision was badly misguided, and in conflict with Supreme Court precedent. The Sixth Circuit appellate court eventually reversed the conviction, albeit without addressing the federalism issue.

UPDATE #3: In the initial version of this post, I accidentally misstated Rep. Ken Buck’s first name. I apologize for the error, which has now been corrected.