Doug Berman at SL&P discusses H.R. 563 by Congressman Duncan Hunter, also noted on the NYT's political blog. The bill provides, "It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated." These are the two Border Patrol agents convicted for shooting a drug smuggler.
If the bill were to pass and be signed by the President, which is unlikely, its constitutionality is doubtful under Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). Deciding cases is the judicial power, and issuing pardons is executive. The legislative power is to make the law by which cases are decided, not to decide them. As Justice Scalia notes in Plaut, the Constitution's relatively strict separation of powers was adopted in reaction to the unhealthy mixing that was common in the states in the Articles of Confederation period.*
Constitutional questions aside, though, if Congressman Hunter and his 99 cosponsors believe that the verdict in this case is an injustice, and if they can actually pass a bill, why not do it the right way and clarify the substantive law? If the use of deadly force in these circumstances should not be a crime, then Congress can and should enact a statute saying so, applicable not only to these two officers but to all similarly situated.
The Supreme Court defines when a use of force violates the Fourth Amendment, but only Congress can make such a violation a crime. "It has long been settled that there are no federal common law crimes; if Congress has not by statute made certain conduct criminal, it is not a federal crime." 1 W. LaFave, Substantive Criminal Law § 2.1(c), p. 107 (2d ed. 2003). A statement by Congress that a use of force should be legal would also be entitled to consideration by the Supreme Court in reconsidering what is a "reasonable" seizure for the purpose of the Fourth Amendment.
* One of my favorite golden oldies is a legislative pardon case. Judge George Wythe (pronounced "with") of Virginia reviewed the constitutionality of a statute in Commonwealth v. Caton, 8 Va. 5 (1782). That was 21 years before his former student announced the principle of judicial review on the federal level in a suit against the administration of another former student. Judge Wythe was later a delegate to the Federal Convention. You can visit his house in Williamsburg.
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