by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Heretofore, the president has promoted the slander that a Clinton-era crime bill resulted “mass incarceration for Black people, many of them innocent,” resulting in a desperate need to “reform” the criminal-justice system. Now however, with cities aflame, he asserts that the “Federal Government [is] ready, willing and able to help, if asked” by the blue-state authorities.
Couple of things about that.
First, the federal government’s authority to combat the exploding crime problem is not contingent on a request for help. As we discussed during the violence that erupted across the country after George Floyd’s killing by Minneapolis police, there may be circumstances in which a state request is necessary before the president may call in troops to address mass violence (although executive power in this area is well settled). When it comes to law enforcement, though, the federal government’s jurisdiction over criminal acts hinges on whether Congress has enacted a penal statute based on some function the Constitution assigns to Washington. If there is a federal crime, the FBI does not need the permission of local police to enforce it.
Second, and more significantly, the federal government’s jurisdiction and policing resources are limited. This is not to say that they are insubstantial. It is to acknowledge that policing, especially against street-level violent crime, is overwhelmingly a state responsibility.
There are three categories of federal jurisdiction over violent crime. The first two are straightforward: (1) Violent attacks (or conspiracies to commit them) against federal officers or foreign diplomats; and (2) violent crimes committed on federal territory, such as a military base. Neither of these is the main concern at the moment.
We are in category three: Crimes that implicate some responsibility the Constitution assigns to the federal government.