Senators Cornyn and Cruz Propose a Huge Expansion of Federal Power Over Policing

Photo elements by Gage Skidmore and Jamelle Bouie https://creativecommons.org/licenses/by/2.0/

Recently, Texas Senators John Cornyn and Ted Cruz re-proposed the Back the Blue Act, which would create special crimes and penalties for killing law enforcement officers whose departments receive at least some federal funding. The current bill is S.1134, though this is largely identical to H.R.5809 which was introduced by Representative Ted Poe last year.

This bill creates new crimes and increases penalties for those who kill or injure law enforcement officers, or even former judges. The bill limits Habeas Corpus, limits recovery of damages by citizens who were involved in an altercation with police, and establishes basic self defense rights for police officers. Finally, the bill provisions some extremely vague requirements, such as

  • “…promote trust and ensure legitimacy among law enforcement agencies”
  • “…develop comprehensive and response policies on key topics”
  • “…balance the embrace of technology…with local needs”
  • “…endorse practices”

And the list goes on.

So what’s the problem? Shouldn’t we support our police, like good citizens? Why isn’t this bill something we should all rush to support? Well, the proverbial devil is always in the details. Basically, this is a well-intentioned bill, which attempts to accomplish some noble ends, but unconstitutionally increases federal power. While we all have friends and family in law enforcement, civil service, or the military, we must temper our desire to give our civil servants protection with the necessity to keep in check a federal government that will consume all, if allowed to. The constitution doesn’t even not permit the federal government to meddle in law enforcement (unless you think that interstate ill-used commerce provides such jurisdiction), so whether its a good idea or not should be a moot point. Furthermore, what should it matter that law enforcement is “federally funded?” If the federal government has jurisdiction, why should it matter whether the state agencies consume federal funds?

One obvious argument against this legislation is that, as Texans, we should oppose all expansion of federal power. Clearly, the federal government is drunk on its authority, and regardless of surface motive, we need to stand against any federal legislation that would jeopardize the state sovereignty. In fact, law enforcement is a state issue and should remain as such. If the Texas legislature debated this bill, we might come down on one side or the other; but at least we were all agreed that it was within the authority of Texans to establish penalties for crimes. We definitely should oppose Washington D.C. driving cases to federal courts: have we cause to be encouraged by federal courts, recently? What case is there to be made that “federal enforcement” or “federal prisons” or even “federal capital punishment” is somehow superior to that handed out by Texas?

Thanks anyway, I will always choose Texas.

Another equally grave concern is that this bill will end any pretense of equal protection for those who are rightfully defending themselves against law enforcement. While uncommon, it does happen that law enforcement is wrong. Consider the case of Henry Magee, who was cleared by a grand jury after defending himself against an unannounced marijuana raid on his home.  Not suprisingly, “no-knock” raids have skyrocketed in the past thirty years. A 2013 Gallup Poll showed that 72% of Americans see Big Government is the biggest threat to America. Why, then, would we support a bill that puts us one more step closer to an Orwellian future: one where citizens may not defend themselves against law enforcement?

But perhaps the most crucial argument against this proposed law is the same argument that can be made against “hate crime” legislation. Indeed, Republicans are historically fond of criticizing such legislation because it would create special classes of victims who have greater rights than others. Recall that in 2000, Governor George W. Bush vetoed the Texas hate crimes legislation on the basis that a murder is a murder–it doesn’t matter who it happens to.  The penalty should be the same regardless as to the motivation. This issue almost lost the election for Bush, but at least on this issue the Texan Governor stood on the high ground, only to have it hastily surrendered by his successor.

The problem with such legislation usually is not about the immediate effects, but the long-term ones, and this may be a case of curing a cold while causing cancer. While I believe that many who support “Back the Blue” legislation have their heart in the right place, we absolutely need to remember who we’re dealing with. The federal government is not your friend. It only wants its sphere of power to expand, by any means. Even if you trust the current party and president to handle these new illegal powers, they won’t always be there, and this legislation is a foot in the door for Washington to further control our states and us. So please, let’s debate this at the state level where it belongs and see where we get. Let’s agree that this is a problem that does not need another corrupt federal solution.