About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (July 08, 2020)

handle is hein.crs/govdase0001 and id is 1 raw text is: FF.ri E.$~ & July 8, 2020 Monuments and Memorials: Federal Criminal Law Protections On June 26, 2020, President Trump issued an Executive Order on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence (June 26 Order). Among other things, the June 26 Order directed the U.S. Department of Justice (DOJ) to prioritize prosecutions under existing federal statutes protecting monuments, memorials, and statues. On July 3, 2020, President Trump issued an Executive Order on Building and Rebuilding Monuments to American Heroes (July 3 Order). The July 3 Order decried vandalizing or destroying national monuments and created an Interagency Task Force for Building and Rebuilding Monuments to American Heroes (Task Force). The July 3 Order also assigned the Task Force to establish a statuary park named the National Garden of American Heroes (National Garden). This In Focus analyzes two federal criminal statutes that may protect monuments and memorials from removal or intentional damage, potentially including future monuments in the National Garden. Criminal law enforcement is an area where States historically have been sovereign. United States v. Lopez, 514 U.S. 549, 564 (1995). When Congress wishes to criminalize individual conduct, it may do so only as an exercise of its constitutionally granted authority. Although Congress's legislative powers are broad, they are not unlimited. Courts have declined to uphold federal criminal statutes that do not require a sufficient jurisdictional nexus that is, an element of the offense bringing it within the scope of Congress's constitutional powers. Id. The U.S. Constitution grants Congress several different powers that it may use to enact legislation. For example, Article I, Section 8 of the Constitution expressly authorizes Congress to legislate regarding counterfeiting, piracy, crimes on the high seas, offenses against the law of nations, and treason. The Commerce Clause is another significant source of legislative authority that undergirds many federal criminal statutes. Under its Commerce Clause powers, Congress may regulate three categories of activity: (1) use of the channels of interstate commerce, such as highways; (2) instrumentalities, such as vehicles used to carry out commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce, at least in the aggregate. See Lopez, 514 U.S. at 558 59. Congress also has authority under the Postal Power (Article I, Section 8, Clause 7) to regulate the use of the postal system. Additionally, Article IV, Section 3, Clause 2 the Property Clause gives Congress the power to make all needful Rules and Regulations respecting... Property belonging to the United States. The Supreme Court has explained that Congress's Property Clause power over the public land is without limitations. United States v. San Francisco, 310 U.S. 16, 29 (1940). When Congress creates federal criminal law by exercising one or more of its constitutional powers, those laws are generally enforced by the DOJ, which can prosecute violations of those laws in court, consistent with due process and other rights of the accused. The DOJ does not need specific authorization from the President or from any other entity to prosecute violations of federal criminal law. However, as the head of the Executive Branch, the President may set certain enforcement priorities and shape Departmental policy on the handling of such prosecutions. vetewas2 oenra~ In certain circumstances, the Veterans' Memorial Preservation and Recognition Act (VMPRA) criminalizes the willful injury or destruction (or attempted willful injury or destruction) of any structure, plaque, statue, or other monument on public property commemorating the service of any person or persons in the armed forces of the United States. 18 U.S.C. § 1369(a). A person convicted of violating this provision may be imprisoned up to 10 years, making the crime a felony. However, the applicability of this statute is limited in several important respects, as discussed below. Limited Jurisdictional Circumstances. Section 1369(b) expressly limits the above-described crime's applicability to two circumstances. First, § 1369(b)(1) covers instances when the offense involved interstate or foreign commerce or the mail. Specifically, the statute applies when the person committing the offense does so by (a) traveling, or causing someone else to travel, in interstate or foreign commerce; (b) using an instrumentality of interstate or foreign commerce, such as a car or truck; or (c) using the mail. Both (a) and (b) tie the conduct to Congress's Commerce Clause power; (c) falls within Congress's Postal Power. Second, § 1369(b)(2) makes the statute applicable when the monument in question is located on property owned by, or under the jurisdiction of, the Federal Government. This invokes Congress's power under the Property Clause. These circumstances are elements of the overall offense and must be proven in court. If a person willfully injures or destroys a monument commemorating service in the United States Armed Forces, but (a) does so without traveling in or utilizing any instrumentality of interstate commerce and without using the mail, and (b) the monument is not located on federal property, that person would not have violated the VMPRA. p\w -- , gn'a', goo mppm qq\ a , q 'S I 11LINUALiN,

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most