BY BOB BARR
Lightning-fast responses may be an ability that separates good athletes from outstanding ones. Possessing the skill to respond instantaneously to what is happening around you can mean the difference between the checkered flag at the Indianapolis 500 and a second-place finisher no one will long remember.
But in crafting legislation, knee-jerk reactions to events in the real world seldom withstand the test of time and frequently cause more long-term harm than benefit. Unfortunately, this is a lesson rarely understood by state legislators or by those who serve in the Congress of the United States.
A list of bad legislation passed by the Congress in response to “crises” would have to include the so-called “Dodd-Frank Act,” which included within its myriad sections the Consumer Financial Protection Bureau (CFPB) and the Patient Protection and Affordable Care Act, more commonly known as “Obamacare.”
Both of these massive pieces of legislation became the law of the land in 2010 (when the Democrats controlled both Houses of Congress and the White House), and both gave rise to numerous problems — both anticipated and unforeseen — that necessitated significant remedial action by the courts, the Congress and the Executive Branch.
Legislative responses to problems almost always are made to appear appropriate, if not critically important, at the time Congress involves itself. More often than not, however, the remedy turns out to be ill-suited to the malady.
This is the case regarding a bill that recently passed the House and awaits action by the Senate — the “Community Safety and Security Act of 2018” (H.R. 6691). As often is the case, the title of this proposed law belies the actual impact of the legislation, and the solution to the problem it purports to “fix” is certain to cause further and more serious problems down the road.
H.R. 6691 is a knee-jerk response to a Supreme Court decision this past spring: Dimaya v. Sessions. The majority opinion in the case was authored by Associate Justice Elena Kagan, but partially joined in by the newest Associate Justice appointed by President Trump, Neil Gorsuch.
What appears to have rankled the GOP majority in the House and led directly to the legislative fix is the Court’s holding that at least for federal immigration deportation actions, the definition of a “crime of violence” is impermissively vague.
While many conservatives routinely criticize the Federal Government for employing a criminal law net that is too sweeping, when it comes to reining in that dragnet, a different standard is used. In this particular case, the desire to deport any immigrant (in this instance, a lawful immigrant) who has violated a state or federal law, appears to have trumped the principle that if the government is going to take away a person’s liberty via conviction of a crime, the definition of the crime must be clear and unambiguous, in order that the person is actually on notice that they have broken the law.
Unfortunately, in its apparent zeal to prove its tough immigration chops, the Republicans in the House cobbled together a bill (H.R. 6691) and rushed it through that body without even pausing to mark it up in committee. Far from clarifying the federal standard for “crimes of violence,” this legislation actually makes the problem worse.
As Jason Pye, Vice President of Legislative Affairs for Washington-based FreedomWorks has noted, H.R. 6691 goes so far as proposing to codify “fleeing” as a “crime of violence.” Pye correctly notes also that another “crime of violence” included in the Act’s expansion of the federal criminal code, is the offense of “interference with flight crew members,” notwithstanding that such phrase under federal law carries with it no essential element of violence.
The bill compounds the problem of putting individuals on notice as to what might constitute violent criminal behavior by defining “coercion” to mean “causing the performance or non-performance of any act by another person under which such other person has a legal right to do or to abstain from doing, through fraud.” What such definition actually means or has to do with “crimes of violence” is not at all clear.
If only for the sake of those of us who actually remain concerned about a federal criminal code that already is far too lengthy and unclear, let us hope the Senate gives this piece of knee-jerk legislation a quick and unambiguous burial.
Self-Educated American Contributing Editor, Bob Barr, represented Georgia’s 7th district in the U.S. House of Representatives from 1995 -2003 and as U.S. Attorney for the Northern District of Georgia from 1986-1990.