Democrats should drop the posturing and get serious about finding some common ground.
Joe Biden called on Congress to “root out systematic racism in our criminal justice system and enact police reform in George Floyd’s name that passed the House already.” The Democrats’ “George Floyd Justice in Policing Act” is a textbook example of politicians responding to a sensational crime with an attitude of “we must do something; this is something, so we must do it.” It is no dishonor to George Floyd’s memory, and no insult to righteous anger at his death, to oppose this legislation and prefer better proposals that can draw bipartisan support.
The job of enforcing the law is never done, and neither is the work of enforcing the law better. Conservatives have championed many improvements in law enforcement in the past few decades — some to prevent more crime, some to catch more criminals, some to protect citizen liberty from the law — and we should not reflexively resist further changes. But neither should we allow periods of panic to undo things that have been proven to work.
We begin with first principles. Policing is traditionally and constitutionally a local obligation. Most progress in policing has come from cities and states experimenting with new approaches suited to their own populations and terrain, and seeing what works. The Democrats’ instinct to micromanage local departments across the country with one-size-fits-all federal mandates is not only constitutionally questionable, it also risks freezing police practices in place when reforms should be evaluated and continually revised by state and local governments that are better equipped to provide ongoing supervision.
The federal government should start by undoing its own mischief. It should repeal federal laws against marijuana, scale back the costly and failed War on Drugs, and place clearer lines of accountability on joint federal–state task forces, so that combined operations do not shield state officers from the ordinary channels of state law.
Federal qualified-immunity doctrine arose from a reasonable premise (police should not be sued for enforcing unconstitutional laws passed by legislatures) and grew as a way for activist courts to invent new, unwritten “rights” without ruinous retroactive liability for cops who could never have imagined what creative judges might do. But it has grown into its own body of judicial fictions, which Justice Clarence Thomas has called on the Supreme Court to revisit. Congress need not abolish qualified immunity, but it is supposed to be a creature of statute. Rather than punt the job of lawmaking to the Court, Congress can and should significantly rein in the qualified-immunity protection of misbehaving police who do not act in good faith. [ … ]