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?
New NY 23rd 
Thank you for voting against this bill. I am shocked that so many voted for it.
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I absolutely agree with Congressman Amash on this.
Why are so many trying to turn the federal government into the Former Soviet Union. We will and already have ended up with a federal government we can no longer afford.
There are more employees in teh Department of Homeland Security today than there were employees in the entire federal government when President Johnson left office in 2009.
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Rep. Amash claims: The Constitution … 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). What about ICE, is that federal police force constitutional? Why or why not?
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The law already requires a number of classes of people (teachers, doctors, child care workers, law enforcement , etc). to report suspected sexual abuse of children. It simply extends that protection for children to coaches and those who deal with children or young adults in athletics. So, this is not a new law, it simply adds a category to the old law.
Mr Amash has his opinions but he may be cherry picking to make his point. For example, he states that…
“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….”
But if you read the bill you will find that in the paragraph immediately following the one he references it is clear that a person does not give up any rights….
“(2)Preservation of rights
Nothing in this section shall be construed as altering, superseding, or otherwise affecting the right of an individual within the Center’s jurisdiction to pursue civil remedies through the courts for personal injuries arising from abuse in violation of the Center’s policies and procedures, nor shall the Center condition the participation of any such individual in a proceeding described in paragraph (1) upon an agreement not to pursue such civil remedies.”
Mr Amash states that:
“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…”
But he fails to note that the Center only decides whether or not the individual in question can continue to act as a coach, mentor, etc. It has nothing to do with the criminal charges that are filed separately. That is another issue. For example: The Center may, after hearing the coach and his accusers decide that the person can no longer coach in any organization under its jurisdiction. HOWEVER, pursuant to the law, that individual can go to court and challenge that ruling, unless BOTH parties sagree to binding arbitration. And that individual can be tried in court no matter what the result of an arbitration by the Center. So, Mr Amash cloudies the water with his claim.
Mr Amash states:
“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….”
As I stated earlier, the law already requires certain individuals to report suspected sexual abuse. I am not sure how reporting a suspected crime makes one guilty of a “thought crime”? And, of course, EVERY person is a “potentially innocent person”. DUH. that is why we have investigations of behavior that may seem inappropriate.? Amash seems to infer that any investigation of any criminal activity implies guilt. It does not.
More disturbing, he seems to be saying that no coach should ever be turned in for sexual abuse unless another person actually WITNESSES the abuse. Really? So if a coach sees another coach go into a locker room with a 15 year old girl and not emerge for 30 minutes and she looks disturbed and disheveled, that is not reportable ???
Even more
(On a personal note when I was a coach I was once accused of “inappropriate behavior” because a person THOUGHT he/she saw something wrong. I welcomed an investigation and I was cleared of any wrongdoing. I did not blame the reporting person because he/she reported something he/she deemed suspicious. When children or even older minors are involved we cannot be too careful. (An innocent person should not fear a thorough, honest investigation. Ever.)
So, in summary. This bill simply adds another category of person to a law we have had on the books since the 1990s. Nothing new here, just added coaches, etc. to those required to report possible sexual abuse. Had this law been in effect perhaps the Joe Paterno case and the Dr Nassar case may have been reported early.
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While the above argument is persuasive, it doesn’t address the question of whether S.534 and similar laws are constitutional or not.
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My understanding of the law is that it applies specifically to federal lands and facilities or federally-funded programs. It would also apply to organizations that cross state lines since no one state would then have jurisdiction. For example, the NCAA or the US Olympic Committee would be a “national governing body” which does business across state lines. So, I could be wrong but I think the law applies to those organizations and facilities under federal jurisdiction only.
So, I suppose it may be up to the individual states to extend protection to areas not covered by the federal law. Like NY…
http://newyork.cbslocal.com/2018/01/29/new-york-lawmaker-wants-to-mandate-reporting-of-abuse-by-athletic-organizations/
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Here’s my conflict: I don’t object to S.534, and I don’t agree with Rep. Amash’s suggestion that what isn’t explicitly written in the Constitution is unconstitutional. For example, I believe Congress can ban bump stocks even though they didn’t exist when the Constitution was written. But if the national police force known to us as ICE could be shown to be unconstitutional, I would welcome that. In contrast to ICE, I believe the FBI is limited to assisting local police.
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Well, the Republican majority on the Supreme Court has decided that “corporations” have the same civil rights as “persons”. Yet, I do not think the word “corporations” appears even once in the Constitution. The “strict constructionists” pick and choose depending on the politics. They pretend to use the “intent” of the founders, but they interpret the law to fit the times. I say that the Constituion is a flexible document. The “strict constructionists” agree.
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