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Our federal government was intended to be one of enumerated powers granted by the states; as such, it was empowered to do only a relative handful of things, and those things were understood to be ones that the states were incapable of doing effectively on their own. Obviously, practice has not always followed theory, but it’s one of the things that’s made our country unusual, diverse in the best sense of the phrase, and responsive to its citizens at the most local level. You might even say that it’s part of what made America great.
If there’s one thing state governments have generally been good at, and that the federal government has generally stayed away from, it’s been in murder prosecutions. Oh, sure, there are exceptions for organized crime and a handful of other things — some more legitimate than others — but the presumption had always been that local crimes are handled by local authorities. But with an increasingly national media and an ever-aggressive federal government, there’s been a trend lately where the feds jump at any opportunity to prosecute high-profile crimes. We saw it in the Boston Marathon Bombing case a few years ago; we saw it applied with even greater absurdity last year after Dylann Roof murdered nine church-goers in Charleston, SC; and — if Rep. Ken Buck and Senator Jeff Sessions get their way, we’ll see it again whenever a police officer is murdered.
As Ilya Somin argues on the Washington Post’s Volokh Conspiracy, the Blue Lives Matter Act — which makes it a federal hate crime “to knowingly causes bodily injury to any person … because of the actual or perceived status of the person as a police officer” — is foolish, unnecessary, and unconstitutional (other than that, though, it’s great). State and local authorities are not only perfectly capable of prosecuting those who attack law enforcement officers, they’re already highly incentivized to do so. Indeed, it’s probably the one thing you can rely on any local authority to do, even the most virulently anti-cop. As Somin puts it:
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.
Moreover, the constitutional justification for the BLMA is, at best, incredibly weak, if not patently unconstitutional. Given the history of similar laws, it would almost certainly rely on the sort of expansive reading of the Commerce Clause that make one wonder why the Framers bothered to list any other powers; either that, or the government would likely have to present it as a Thirteenth Amendment case, which is every bit as weird as it sounds. It’s a marginal improvement over Donald Trump’s promise to ensure the death penalty for cop-killers through executive order, but this is not a terribly high standard to clear.
It’s totally understandable that — after seeing Leftist politicians get away with usurping political and constitutional authority to push their pet projects — that our side is eager to even the score and use the same tactics against them for better causes (and it’s hard to think of a much better cause than prosecuting murderer, let alone the murder of those entrusted with protecting us from murder). It’s still wrong in this case.