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Law, Order, and the Presidential Campaign

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Daniel Henniger has this column in the WSJ asserting that this year "law and order" will make a comeback as an issue in the presidential campaign, to the benefit of Republicans.

Too late. The days when the Democrats could claim to be the party of personal or national security are long gone. In 1968, Richard Nixon tagged them with it. This time, they've done it to themselves.

With the four Democratic presidents from FDR to LBJ, security was a partisan debate over details. Since 1970 and the Democrats' long march left, providing for the common defense has been leaching out of the party's DNA.
I hope he is right that this issue will get a higher profile.  He is certainly right about the Democrats being bankrupt on the issue, though unfortunately we have had considerable leaching in the Republican Party as well.

And then of course there is Donald Trump.  He is right that more people who murder police officers should be executed, but how many ways is this proposal (reported by Ben Kamisar at the Hill) unconstitutional?

"One of the first things I'd do in terms of executive order, if I win, will be to sign a strong, strong statement that would go out to the country, out to the world, anybody killing a police man, a police woman, a police officer, anybody killing a police officer, the death penalty is going to happen," he said.
First, and most obviously, the President can't change death penalties from discretionary to mandatory by executive order.  The federal death penalty and all current state death penalties are discretionary by statute.

Second, killing a police officer is not, as such, a federal offense (unless a federal officer).  The President can't make it one by executive order, and it is doubtful whether Congress could make it one by statute.  Obviously, the President can do nothing about state laws on this subject.

Third, mandatory death penalties are contrary to the Supreme Court's decisions in Woodson v. North Carolina, 428 U.S. 280 (1976) and Sumner v. Shuman, 483 U.S. 66 (1987).  Mr. Trump presumably thinks these cases are wrongly decided, and as to Sumner I would agree.  But they are the law until overruled by the Supreme Court or abrogated by constitutional amendment.

Pounding the podium does not help.  The Republican candidates need to make law and order an issue with clearly thought out proposals and solid arguments.

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