Rep. Justin Amash (R-MI) writes:
I voted no on the motion to suspend the rules and pass #S534, which federalizes criminal law with respect to certain child abuse reporting. Specifically, the bill makes it a federal crime for an adult who works with amateur athletes to fail to report any instance of suspected child abuse—a subject over which the federal government has no general jurisdiction.
The Constitution does not permit Congress to pass criminal laws like the one created by this bill. It explicitly authorizes Congress to criminalize only a few activities, which relate to matters that are clearly federal in nature (counterfeiting, crimes on the high seas, treason). All other criminal activities are punishable at the state level.
The Framers of the Constitution recognized the dangers of federalizing criminal law. The potential benefits of federalization—instant, consistent law throughout the country—are easily outweighed by the negative, unintended consequences and the threat to life and liberty that federalization poses.
First, when only one jurisdiction is responsible for a particular crime, voters know who failed to act and whom to hold accountable. But when the federal government assumes responsibility for state crimes, it obscures which government—federal or state—is responsible for investigating and prosecuting a particular crime, and it vests authority in unelected federal officials whom voters can’t hold directly accountable. This allows state officials who fail to reasonably investigate and prosecute particular crimes to shift blame and sow confusion about who should be held responsible, instead of being properly scrutinized and removed by the voters.
Second, a critical component of due process is that the accused not be tried for the same crime multiple times. With the federalization of crime, however, a person may be charged in both state court and federal court for essentially the same crime.
Third, as Congress encroaches on more areas of criminal law, budget-constrained state governments may be increasingly inclined to leave the prosecution of many criminal matters to the federal government. But there are substantial benefits to having competing, functional state laws rather than one federal law. The Constitution’s approach encourages states to experiment with different systems—providing for more innovation and less risk than Congress’s imposing one law on everyone.
Fourth, the more criminal laws the federal government must enforce, the more federal police officers it needs. This federal force is not nearly as accountable to local voters or taxpayers as are state and local police. Federal police take their orders from Washington, and they often have little connection to the communities in which they operate.
Finally, the primary mission of federal courts is to judge matters that are national in scope and not properly handled in state courts. With the increased federalization of crime, however, federal courts now spend most of their time and resources handling matters that traditionally are the purview of state courts. Consequently, the ability of federal courts to deal with federal matters in an efficient and effective manner has been diminished.
In addition to federalizing state responsibilities, this bill has other fatal flaws:
S 534 creates a thought crime. No one should face the risk of prison time for failing to report unsubstantiated rumors about a potentially innocent person. Under this bill, if someone just suspects abuse—does not witness, confirm, actively conceal, or assist in the abuse in any way—and takes no other action for 24 hours, that person is a criminal. Free societies do not criminalize this kind of inaction, and crimes like this—which can turn lots of ordinary, unknowing people into criminals—take law enforcement resources away from crimes committed by malicious actors that cause direct harm.
S 534 invites due process problems. The bill establishes an organization empowered to investigate and resolve abuse accusations against individuals involved in amateur athletics, including through binding arbitration, to determine whether the accused individual may continue participating in competition. The bill requires “fair notice and an opportunity to be heard,” but it does not mandate any of the other elements of due process. This omission is especially troubling considering the bill immunizes the organization and individuals involved in the resolution proceedings from being sued for defamation. Because defamation lawsuits arise under state law, the provision also creates a Tenth Amendment issue by abridging states’ ability to determine the scope of their own laws.
The Framers wrote the Constitution to protect against the dangers posed by this bill. When Congress ignores the Constitution, we harm our constituents in ways that may not be immediately apparent. It is our responsibility to carefully consider each piece of legislation that we pass so that we can notice and avoid these consequences.
S. 534 passed 406-3. Do readers agree with Rep. Amash? Is his view of the Constitution correct?