Constitution Check: Does Congress have the authority to pass “Caylee’s Law”?

In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution  and what duties it imposes or rights its protects. Today’s topic: Congress and the protection of children.

The constitutional claim:

“At a federal level, legal experts say, Caylee’s Law has little future. The Constitution prohibits Congress from intervening in a local matter like a missing child.”

– “Anthony Verdict Sets Off Spate of New Legislation: Bills seek to punish delays in reporting a child’s disappearance or death,” The New York Times, July 9, 2011.

The constitutional response:

While many media outlets are engaging in a feverish search to locate Casey Anthony, who seems to have gone into hiding since she was acquitted in early July of the murder of her two-year-old daughter Caylee, a quiet movement has spread across the country to enact new laws bearing the child’s name.

Caylee Anthony Orange County Sheriff's Office

President Obama and Congress are now being asked urgently – as are state legislatures — to push for laws to protect children like Caylee, whose mother did not report for 31 days that she was missing.

Typically, such laws would make it a crime if a “parent or caregiver” failed to report that any child under age six had been missing for more than an hour, or who falsely reported “the circumstances of an accident or injury to a child under the age of six.”

Some legal experts have said Congress doesn’t have the constitutional authority to pass such a law. But the legal experts may well be wrong in this case.  Congress has not hesitated to pass law after law intervening deeply into what traditionally was thought the realm of local criminal law.  And there does not seem to be much of a complaint that the Constitution forbids such actions.

Criminal laws are adopted under government “police power” – a term that does not mean only the activities of police officers, but generally encompasses laws to protect “public health, safety, and morals.”

While the Constitution does not give Congress a roving “police power” authority, whatever constitutional sensitivity there is about laws at the federal level that reach well down into state “police power” territory seems to have lost some of its potency.

Consider just a few federal laws that exercise broad “police power”:

** The Jacob Wetterling Act,” named for an 11-year-old St. Joseph, Minn., boy who was kidnapped and never seen again.  Passed in 1994, it requires states to implement registries for those who commit sex offenses or other crimes against children.   (The law has since been strengthened by a federal Megan’s Law and a federal Pam Lychner Act.)

** The Adam Walsh Act, named for a 13-year-old boy abducted from a Hollywood, Fla., department store and murdered.  Passed in 2006, it added further to protection against sex offenders, and was intended as a full replacement for the Wetterling Act and its various amendments.

** The Matthew Shepard Act, enacted in 2009.  Although Matthew was not a child, his torture and murder near Laramie, Wyo., when he was 21 stirred a strong emotional response because he was gay.   The Act provides a wide-ranging federal response to hate crimes.

Congress also has not hesitated to react to emotionally charged cases involving other threats to children, such as the Ryan White Care Act, passed in 1990 in honor of an Indiana teenager who died of AIDS contracted through a medical treatment and was expelled from school because of his illness.  The Act provides a broad federal program of funding for people living with HIV/AIDS.

Congress, of course, must always find some federal “hook” on which to base laws to protect the public health, safety and morals.  It often does so under the Commerce Clause, on the theory that the problem it is addressing spreads beyond individual state boundaries.  And it may well do so again in the case of Caylee Anthony.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.

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