As American cities burn, there are calls for action and calls for reform. Can we do more to stop extremist violence? Can we do more to punish misconduct by police? Should we be concerned about doing too much, in the name of doing something?
Missing from this discussion: the United States Congress. Some of the issues at stake are really not properly federal concerns. But both at the federal and state levels, there is room for lawmaking that balances contending concerns. Instead, it seems likely that many of these issues will be resolved by pen-and-phone executive lawmaking and judicial activism.
Congress’s failure as a lawmaking body is a longstanding, bipartisan problem. Now would be a good time to reverse that. For example: The executive branch is pushing once again to label a domestic group (Antifa) as a terrorist organization. But existing law presents the same obstacle to this that the Obama Administration faced in trying to apply the same label to white-supremacist groups: Federal anti-terror legislation is written to focus on foreign terrorist threats. (The Trump Administration has applied the designation to an international, Russian-backed white-supremacist group).
Moreover, these domestic groups of the far Left and far Right have mostly not functioned as “terrorist” groups in the same sense as, say, al-Qaeda. And the effort to throw around the terrorist label against political enemies has led to some appalling overreaches, such as San Francisco trying to brand the NRA as a terrorist group. Efforts to use other federal statutes such as the Racketeer Influenced and Corrupt Organizations Act (RICO) against extreme forms of political protest have likewise proven a poor fit; RICO is designed to deal with the infiltration and domination of legitimate organizations, and in the long-running fight between NOW and abortion-clinic protestors, the Supreme Court held that federal extortion law did not apply to conduct that does not obtain any economic benefit to the protestors.
Still, Antifa and white-nationalist groups remain a source of interstate political violence. Rather than ignore the problem or have the executive try to squeeze these square pegs into the round hole of existing law, Congress could craft a compromise that deals more proportionally with the problem, and perhaps provide more safeguards as well against overreaching surveillance and process-crime prosecutions as we saw in the Russia investigation and other politically sensitive investigations. In theory, this could be a bipartisan effort that satisfies the Republican desire to show that lawmakers are doing something about Antifa, and the Democratic desire to show that lawmakers are doing something about white nationalists. In practice, it is highly unlikely that either side has the residual level of trust, or the work ethic, necessary to drive a bipartisan bargain.
Or what about qualified immunity, the doctrine that frequently shields law-enforcement officers from civil lawsuits? A full discussion of the pros and cons of qualified immunity is a topic for another day, but the doctrine itself is not constitutional in origin. Courts created it based on how they saw the language of federal statutes interacting with common-law defenses of official immunity. While there are continuing efforts to get the Supreme Court to change qualified immunity doctrine, there is no question that Congress, legislatively, has the power to do so.
Under the qualified immunity doctrine, police can be sued civilly only for violating “clearly established statutory or constitutional rights.” In practice, that often means that liability depends on what previous judicial decisions have established. It was originally derived from rules for lawsuits against high policymaking officials. But policymakers are very differently situated from street cops: Their actions affect large numbers of people, they are likely to receive legal advice before acting, and they are often directly accountable to the voters. Police officers should be granted reasonable defenses from civil liability where they act in good faith, but a reasonable standard should probably be pegged to something other than the current state of the caselaw. Congress could do the hard work of striking the right policy balance, which shouldn’t be the job of judges.
This isn’t limited to issues of law enforcement and public order, of course. Trump’s effort to rewrite Section 230 of the Communications Decency Act to address private censorship and bias by social-media companies is another area in which legislative review and revision of the law would be more helpful than yet another round of empty rhetoric or executive fiat. Lots of things that can only be done on an all-or-nothing basis, or by creative mutations of the law, by courts, or the president can actually be properly grounded in measured compromises by legislative bodies, if only we had a national legislature that writes laws. Congress was designed to be a lawmaking body, precisely because it has many and diverse members and can engage in the dirty business of broad-based compromise. When lawmakers won’t make laws, the business of lawmaking doesn’t stop — it just goes somewhere less suited to the task.