Partial Constitutionality Redux
A slightly revised version of my so-called debate with Patterico over the so-called constitutionality of the federal so-called law against partial birth so-called abortion is at California Republic. I’m still not sure why people think it’s a debate, but it seems that just about everyone in the blogosphere except the two participants think it’s a debate, so fine, it’s a debate. Whatever. Just read it.
This is not to say that Patterico and I have never had any real debates. We have. For example, while we agree that the Los Angeles Times is unfit for human consumption, Patterico thinks it’s OK to use it to train your dog, an act which I consider cruelty to animals.
October 31st, 2003 at 9:45 am
In Morrison, I thought Rehnquist was pretty clear that nothing to that point was getting overruled. However, the majority kind of drew a line in the sand looking to whether or not the activity regulated was “economic.” A gun possession ban near a school was not economic activity nor was a violent act based on gender an economic activity. Conversely, an abortion is generally an economic act in the sense that a doctor is paid or an HMO provides an abortion to the patient. The underlying event is economic. Especially as (my understanding) the bill does not ban PBAs per se, but instead the provision thereof by a doctor to a patient (economic activity).
October 31st, 2003 at 9:58 am
There is some language in Morrison to support that view, but I think you may be reading too much into it. I see the commercial/non-commercial distinction not as the deciding rule, but rather as merely one factor by which the court can determine whether or not the challenged activity “substantially affects” interstate commerce. Some non-commercial activities clearly meet that testm, and presumably, some commercial activities don’t.
A better test, IMNSHO, would be for the court to demand some evidence that that the actual purpose of the law was to regulate interstate commerce, and not merely to use some tenuous relationship to interestate commerce as an excuse for acting as though it were the legislature and the President were the governor of one big “United State.”
October 31st, 2003 at 12:45 pm
It looks like you and I are having a debate with everyone else about whether our debate is really a debate. I think it’s debatable.
But, in addition to the “Dog Trainer terminology” debate, we have had that debate about the proper use of quotation marks. As I recall, the debate went like this:
Me: “Don’t use quotation marks when it’s not a quote, but some people could think it is.”
You: “Ah, hell, just put anything you want in there.”
Anyway. Great fun to be on CaliforniaRepublic.org.
October 31st, 2003 at 2:24 pm
As I’ve stated, I think it is not only Consitutional, but that it will be upheld. I really cannot buy the 10th Amendment argument because, in promulgating Roe (and then Casey) the Court inserted power to regulate abortion into the federal powers. After all, if the Court had accepted a 10th Amendment argument in 1973, it could NEVER have issued Roe. If you believe Roe, you must also believe that Congress has a 14th Amendment duty to uphold the abortion right both at the federal and state level.
In other words: Why do you think the Court didn’t trample all over the 10th Amendment while they were trampling over all the other sections?
October 31st, 2003 at 2:28 pm
Xrlq- I agree that your motive analysis would be a positive step in commerce clause analysis. In many ways it would take us right back to the motive analysis that Marshall spoke of in McCulloch (what I think Breyer or Souter accuses the majority of doing).
However, the court does not adopt a motive analysis, and leaves us with a kind of economic activity issue lingering, it does seem that congress did regulate a “commercial or economic” activity with the PBAB, and as such, will have a much better commerce clause claim than they did in either Morrison or Lopez. Economic vs. Non-Economic may only be one factor, but it seems to be an important one that the court alluded to in Morrison. Note too, that cases like Heart of Atlanta were left untouched as well. Economic Activity seems to be the only thread that runs through Wickard, Heart of Atlanta, Katzenbach(I think), but not Lopez or Morrison.
Ought the court review congressional motives? Probably, but I believe that the current law states that the court does not review congressional motives (contrary to the dicta in McCulloch).
October 31st, 2003 at 2:43 pm
Kevin: I’m not sure I understand your argument. Roe involved a state law that was struck down on the theory that it violated an individual right. This has nothing to do with federalism or the 10th Amendment, one way or the other.
October 31st, 2003 at 2:50 pm
“Economic Activity seems to be the only thread that runs through Wickard, Heart of Atlanta, Katzenbach(I think), but not Lopez or Morrison.”
Only it doesn’t. The challenged activity in Wickard - a farmer growing wheat for his own consumption - is about as non-economic as it gets. My view is that even though it has yet to be explicitly overruled, Wickard probably isn’t good law anymore.
And query as to whether abortions are “economic” activities, either. Of course they can be bought and sold, but then again, so can almost everything else (including Alfonso Lopez’s gun).
October 31st, 2003 at 5:37 pm
Ah, but see the activity in Wickard is “Economic.” True, Wickard’s activity was not commercial. Commercial being a transaction based approach, however the growing of wheat for personal consumption is still an economic activity. A garden is less still to be economic activity, but it does take an individual out of the supply and demand curve (or better it increases supply by the amount they reduce their demand). Additionally, in Wickard the law was in the main directed at economic activity the growing of wheat, Wickard was just an unfortunate soul who got caught in the regulatory scheme.
The PBAB (from my understanding) does not ban PBAs because they decrease the potential population of the U.S. which then has an affect on interstate commerce. If that was the CC basis than yeah, the thing is probably unconstitutional, but it’s not it’s based on banning the provision of a PBA by doctor to patient or HMO to patient. If the GFSA in Lopez banned the sale of guns (but not possession) near a school, isn’t it substantially more likely that the ban would have been constitutional under CC analysis? If the VAWA banned only gender-motivated violence for hire and/or in the workplace, the congress would have a far better CC case, but in both cases Congress overreached banning not economic activity, but just activity.
Don’t get me wrong. I think that Congress should not be in this business, and either way I look at it as win-win. There is either a PBAB or the CC is a little smaller, but under existing commerce clause analysis I think the PBAB is far more likely to be constitutional than either the GFSA or the VAWA act were.
October 31st, 2003 at 11:14 pm
xrlq–
Let me see if I can put it more clearly.
In ROE, the Court, by judicial assertion of a federal Constitutional Right, claimed the federal courts could regulate a practice (abortion) that hitherto had been a state matter. Having done that the power to regulate abortion is no longer a right “reserved to the States or the People thereof.”
Congress has the general power to enforce rights guaranteed by the US Constitution — individual, group, governmental or whatever — at the very least under the 14th Amendment. It may enforce them directly, it may require states to enforce them, or it may let the federal Courts use judicial methods of enforcement. But once there is a federal Constitutional Right, then Congress has the power to enforce it.
Since Roe/Casey allows limited regulation of the abortion right, it is not unreasonable to conclude that Congress, post-Roe, has obtained this power, since it is now regulation of a federally-guaranteed right. The fact that it is an usurpation is Roe’s fault, not Congress’s.
Your argument seems to say that there are areas where the federal courts can “legislate”, but not Congress. I find this a disturbing conclusion.
I do recognize that this allows a runaway Supreme Court to sabotage the 10th Amendment in the extreme. But such abuses are hardly limited to that Amendment (nor have they been), and the solution is to not have runaway Courts.
November 1st, 2003 at 12:00 am
That’s an interesting theory, but I’m pretty sure it’s wrong. AFAIK, the enforcement clause of the 14th Amendment has always been construed to protect only the rights directly protected under the 14th Amendment, not to grant Congress a general authority to enforce all other amendments that have been held to reach the states by way of the 14th Amendment (or, more accurately, by way of any screwy court cases purporting to apply it).
Even where the enforcement clause does apply, it is a one way street. IOW, it is an authorization to pass federal legislation to strengthen the constitutionally protected right, not an authorization to regulate the affected conduct more generally. So even if the enforcement clause of the 14th Amendment were somehow tied to the “constitutional” right to an abortion under Roe and its progeny, all this would mean is that Congress may pass a federal law prohibiting states from banning PBAs. It would not mean it could prohibit them or restrict PBAs, however, as fetuses have no constitutional “right” not to be aborted.
November 1st, 2003 at 8:22 pm
OK, then I fall back on my other two arguments:
1. The political embarrassment argument: The Supreme Court would look silly accusing Congress of usurping state authority in the matter of abortion. Won’t pass the laugh test.
2. The inTERstate commerce argument: Whenever an abortion procedure has been illegal in one state and legal in another, women have traveled to said other state(s) to obtain the abortion. This is a trivially provable historical fact. Hence the very existance of a state-by-state regime creates its own interstate commerce effect. Congress can therefore regulate the commerce to eliminate the interstate differences.
See 9th Circuit MAYWEATHERS v TERHUNE (appealed to supreme court and review denied) for an example of this kind of intrusive Congressional enforcement with a much weaker basis in Congressional power.
November 2nd, 2003 at 3:58 pm
1. How so? Congress has never been in the business of regulating abortions before, or medicine more generally, for the most part. It would be a huge political embarassment for political conservatives to see their law struck down by judicial conservatives, but it wouldn’t the first time (recall the flag burning cases).
2. If the possiblity that a person may leave State X to obtain a service in State Y made the service a federal matter, everything would be a federal matter. Does the fact that people may cross international borders to obtain abortions make abortion a matter of international law?
3. As to Mayweathers, I wonder if I’m pulling up the wrong case. This case doesn’t deal with the enumerated powers issue at all.
November 2nd, 2003 at 7:14 pm
Well, we just disagree on what is interstate commerce. I think the court is more expansive than you are. As in “nearly, but not quite anything.”
You really don’t see the irony in the Court, having grossly usurped the state right to regulate abortion in ROE — with a BS argument –then turning around and claiming that a mild and needed regulation is an abuse of authority?
And no, that’s not the right case. 9th Circuit 12/27/2002, #0116505p, MAYWEATHERS v. NEWLAND.
http://caselaw.findlaw.com/data2/circs/9th/0116505p.pdf
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November 2nd, 2003 at 8:57 pm
“You really don’t see the irony in the Court, having grossly usurped the state right to regulate abortion in ROE — with a BS argument –then turning around and claiming that a mild and needed regulation is an abuse of authority?”
No, I don’t. As I’ve mentioned before, “states’ rights” is a bit of a misnomer. The issue is not that states have a “right” to regulate anything; it’s that Congress has exceeded its enumerated powers. The enumeration of Congress’s powers is not affected by Roe.
As to the Mayweathers, the spending power is a very different beast from the commerce clause. When Congress acts under its taxing and spending power, it need only act for the “general welfare.” No connection to interstate commerce, or any other independent basis for federal action, is needed. This allows Congress to “regulate” through the back door what it cannot regulate directly (drinking age, speed limit, maximum BAC for drunk drivers, etc.). It could probably do the same for PBA if it wanted to.
November 3rd, 2003 at 7:31 am
I have to agree with xrlq on the federal usurpation idea. Congress could not make a law(under Lopez) saying that it is illegal to possess a gun near a school, and traditionally the states could make such a law. However, if courts started reading the second amendment more friendly to that amendment federal courts could very well state that no state can abridge the right of an individual to possess a gun near a school. That’s because were dealing with an individual rights issue. A federal court can recognize a personal right to be free from govt. interference without being able to legislate on the matter constitutionally. Another example of this is Lawrence v. Texas.
However, an interesting point about the enforcement clause of the 14th amendment. Here, I’d say it gets tricky, but what if the congress passed a lawing banning a third trimester abortion after finding that a person comes into being at the 3rd trimester? A stretch because…defining the beginning of life is traditionally a state realm, but I think a case could be made…If congress found that human life begins after 2 trimesters, than congress can pass a law banning abortion on the basis that life is being deprived without due process of law and the congress can prevent that. However, the underlying portion would be the hardest to get to pass constitutional muster.
Also, I stand by my original CC analysis.