Writes Ilya Somin in "Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent/The problem is the Court's ultra-broad interpretation of Congress' power to regulate interstate commerce. But the justices might cut that back" (Volokh Conspiracy).
Click over there to see the discussion of the case law, which I think clearly establishes that the Commerce Clause supports legislation restricting abortion or creating a right of access to it. Graham's bill — if it advanced — would tempt liberals to argue for the conservative position on commerce power and conservatives to argue for the liberal position.
That's the advantage of the Graham bill: it smokes out hypocrisy. If a pro-choice bill moves forward, conservatives and liberals can't take their usual positions on federalism. And yet, if and when this reaches to the Supreme Court — whether it's a pro- or anti-abortion federal law — I would expect to see Commerce Clause cases overruled.
That is, conservatives have 2 ways to win with the Graham bill: Either an anti-abortion bill will survive or the Court will rewrite federalism doctrine to favor the states. If the Democrats enact their bill, they could suffer the bigger loss of seeing their law stricken down and the rewriting of Commerce Clause doctrine that will make it harder to do many things they'd like to see done at the federal level.
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64 comments:
Conservatives never miss an opportunity to not step on their collective dicks with a hob-nailed boot.
JFC
This is not a Federal issue, either way.
would tempt liberals to argue for the conservative position on commerce power and conservatives to argue for the liberal position.
Liberals want Texas, Mississippi, Utah, South Carolina, etc. to be able to ban all abortions starting at conception? They don't want abortions up to 15 weeks?
And conservatives want to force states to allow abortions up to 15 weeks?
I would think liberals would jump at the chance to ensure abortions up to 15 weeks. Graham and Rubio are proving, again, that they are not conservative. At least not when it comes to abortion.
"Court rewrite federalism doctrine to favor the state."
Which state? The state or the 'states'? I'm absolutely in favor of rewriting everything federal in favor of the 'states'.
The Commerce Claus is the most abused part of the Constitution. Roosevelt began it.
Who knows where the "third rail" in Congressional politics is these days? It used to be Social Security. I would have thought that with Dobbs sending abortion back to the States (either through legislation or popular vote as in Kansas) abortion would become a third rail. But Ms. Lindsey reached out and grabbed it.
But it's pretty clear that "immigration reform" is still a third rail. None of the useless drones in Congress are willing to do anything about the question other than jaw jaw and then go have a cocktail at a party in Georgetown. They will leave any conclusion on the issue for some far away date, like say the 33rd of February in 2075.
If Graham's bill becomes law, and gets tested in the Supreme Court, the momentum of Dobbs will lead to the overturning of Raich and Wickard v Filburn. I would be all for that. Maybe that is Graham's plan?
"the case law, which I think clearly establishes that the Commerce Clause supports legislation restricting abortion or creating a right of access to it"
As if we need further proof of the insanity of current "constitutional law."
Isn't there an air of unreality about this whole thing? Graham's law would be filibustered by the D's in the Senate and would never be signed by Biden. So, its DOA. Assuming it ever passed, do you really think the SCOTUS wouldn't just strike it down? They have Roberts and the 3 D's already.
And if they did and used the Commerce clause so what? The D's don't care about being hypocrites and neither does Roberts. Remember that Roberts said Trump couldn't undo Obama's DACA order, even though the order was unconstitutional because...reasons. Kavanaugh said the J6 committee could supenoa (sic) anyone they liked, but noted that future congressional committees may not be able to.
The SCOTUS could easily write some BS decision that the commerce clause allows them to knock this law down, because its so super-special. All this 'This will shows them as hypocrites" never works because the Left and the Republican Establishment are results orientented. Execution first, trial afterwards.
How did we get all the 14th Admendment, Commerce clause, "states can't regulate child labor, the NRA is unconstititutional" BS before 1940? And none afterwards? The wording didn't change, the Judges did. The FDR dominated court in the 40s and Warren Court in the 50 and 60s, were complete hypocrites. They flip-flopped and overturned so many prior rulings it made people's heads spin. This court is no different.
This brings up the perennial child's question: Mommy, where does "our Posterity" come from?
It would definitely create hypcrites. I have stated it more than once that a ban after 15 weeks or earlier would likely be the ultimate position for a majority of the states, but I still think it better to leave this at the state level for multiple reasons- the states really aren't alike in make up, and it would greatly reduce the vitriol on this issue. A federal law will only inflame the matter further.
holdfast: "Conservatives never miss an opportunity to not step on their collective dicks with a hob-nailed boot.
JFC
This is not a Federal issue, either way."
Graham didn't step on his crank. And Graham knows this is not a federal issue.
Graham did this at the behest of McConnell to undermine all the republican candidates that were endorsed by Trump.
You need to internalize this fact: McConnell and his GOPe allies are more than happy to keep the Senate in democratical hands.
Its not debatable at all.
From publicly trashing republican candidates to handing Biden legislative wins to praising Biden "the man" to pulling available funding OUT of competitive races to having his GOPe lap poodles advance moronic policy proposals (Cornyn on gun control, Lindsay 1.0 on abortion) McConnell has followed up his 4 year war against Trump with all the evidence any objective observer could need to reach unavoidable and distasteful conclusions.
Maybe I got this wrong, but doesn't the "ban" actually make abortion legal in places like West Virginia and set standards more liberal, for example, than all of Europe?
Figure out your vote first, connect to interstate commerce second.
"it smokes out hypocrisy"
Hey Ann ... What if "hypocrisy" isn't something you care about? What if that's something that doesn't matter to you? Let's assume for a psychopath that you're a psychopath.
For example: Let's say I'm FOR the complete elimination of white people, but not black people. Do you think appeals to my hypocrisy are effective? I've already established that I'm Hitler. Do you think Hitler was motivated by whether anyone believed he was a hypocrite?
No. Hitler didn't care if you thought he was a hypocrite. He only cared if you were a Jew. Then he'd kill you.
Democrats are the same, in this regard. They aren't dissuaded from a political position that might expose them as being hypocrites. They don't give a fuck about that. They don't care what you think of them.
And if you eschew positions because they're hypocritical to previous positions that you've had, then you're putting yourself at a disadvantage vis-a-vis their tactics - which are defacto "the rules." Politics is a zero-sum game. You cannot disarm yourself if you expect to win.
You have to be able to hold simultaneous opposing positions on any given topic if you wish to defeat the psychopath. You must become the psychopath top defeat him.
After we've rid ourselves of these psychopaths, then we can begin the debate on whether our position today matches that from yesterday.
"Graham's bill — if it advanced — would tempt liberals to argue for the conservative position on commerce power and conservatives to argue for the liberal position."
Hmmmm... If the restoration of the Tenth Amendment, and the utter destruction of all the pernicious commerce-clause precedents, requires the federal government to be silent on the legality of abortion, so be it. The federal government is already silent on the legality of a host of practices, prominently including murder. If the States can get by without a federal murder statute, they can get by without a federal abortion statute.
Mr. Graham, every once in a while, thinks he's a natural leader for the Senate, if not the entire nation.
He had not been right yet.
Watch the Democrat Party hypocrites literally CHEER as the illegals are forced onto buses to be removed from their island at gunpoint by armed National Guardsmen and placed onto a government-run military camp where they were put in tents.
https://twitter.com/JackPosobiec/status/1571212635168968704
Ann ... you really believe these people are motivated by fear of being exposed as hypocrites?
THEY. DON'T. GIVE. A. FUCK.
As long as the Brown Man is gone girl gone.
So, to recap: Democrats hate Orange Men. And Democrats hate Brown Men, unless the Brown Men are cleaning their pools or blowing their leaves. Otherwise fuck off our island brownie.
Grahams bill isn't going anywhere. The majority of Americans are fine with a 15 week boundary, and the issue of federalism is only important to conservative political geeks. Consevative senators have little downside to voting for it. On the other hand, dem senators have to vote against it to appease their base, which opens them up to attack.
Remember that Roberts said Trump couldn't undo Obama's DACA order, even though the order was unconstitutional because...reasons.
------
Roberts said that Trump could, but then hid behind the APA, saying the order hadn't followed the requirements laid out in that act. Of course, Congress could have dealt with daca back in 2017, but the reality is that many in the GOP want amnesty.
“If Graham's bill becomes law, and gets tested in the Supreme Court, the momentum of Dobbs will lead to the overturning of Raich and Wickard v Filburn. I would be all for that. Maybe that is Graham's plan?“
I doubt that Graham is playing 3d chess in that manner, which leaves only that Graham is handing the Democrats the opportunity to say that Republicans want to take away abortion, the public won’t make a distinction between 15 weeks and a ban.
Much of the liberal agenda has been promulgated by the commerce clause, from agricultural laws, the farmer that was feeding his own pigs his own corn was impacting ISC, to environmental ( oil and gas pipelines, emissions) and labor laws. If the ISC clause is restricted that will be a negative to federal control of the states. Democrats want to dictate to states using a majority in congress. That is probably why SCOTUS used penumbras of things to create Rowe in the first place, except that the penumbras took the issue out of the hands of representative government anyway, up to a new amendment.
Democrats can’t allow the ISC clause to be damaged, and honestly they don’t want to make abortion available, they
just want to be able to complain that it is not available, that is what gets voter attention.
"This is not a Federal issue, either way."
On this we can agree. Let the interested parties in the state of, for example Wisconsin, come up with a plan that would make abortion available on the state level. But for obvious political reasons both parties in the state would rather lay this on congress and not have to take the heat.
Serious Question,
is there Anything Any THING at ALL, that can't be "justified" through the Commerce Clause?
Why did they even bother passing the 13th Amendment? They could have just used the Commerce Clause
Why did they even bother passing the 18th (or, the 20th) They could have just used the Commerce Clause
The reasoning needed to uphold a federal abortion law would also allow Congress to forbid virtually any other medical procedure
Not any other medical procedure. Only those where there is the intent and causation of killing another human being.
Lance said...
I would think liberals would jump at the chance to ensure abortions up to 15 weeks. Graham and Rubio are proving, again, that they are not conservative. At least not when it comes to abortion.
Graham and Rubio are proving they are fascists. Not Conservatives.
There is no world where the Constitution can be interpreted to give congress the power to regulate Abortion. The 9th and 10th amendments are crystal clear. Our Republic was designed to be federalist in nature.
Graham and Rubio are undermining our constitution just as much as the justices who decided Roe v. Wade.
And Graham and Rubio are undermining the Federalist argument on purpose.
gilbar said...
Serious Question,
is there Anything Any THING at ALL, that can't be "justified" through the Commerce Clause?
Why did they even bother passing the 13th Amendment? They could have just used the Commerce Clause
Why did they even bother passing the 18th (or, the 20th) They could have just used the Commerce Clause
The way Ann uses the Commerce Clause they can justify anything they want to do.
And they will quote "Case Law" to do it. There is Case law all over the place. It is totally unsupportable if you actually read the constitution.
But there are Republicans and Democrats lining up right now to undermine the Constitution.
Both sides of this issue have people that want to use the Federal Government's Monopoly on Force to smash everyone that disagrees with them.
"The reasoning needed to uphold a federal abortion law would also allow Congress to forbid virtually any other medical procedure."
Rather than congress passing a bill that you can't have a coronary bypass after the age of 60 because it affects interstate commerce, I would have that bill passed by 49 states.
Bender said...
The reasoning needed to uphold a federal abortion law would also allow Congress to forbid virtually any other medical procedure
Not any other medical procedure. Only those where there is the intent and causation of killing another human being.
You are making this a black and white good and evil argument in order to ignore the issues and the difficulties of this issue.
It is not as clear as you say.
Otherwise we would charge every woman who has a miscarriage with murder because she killed a baby and now the courts need to decide if she murdered it on purpose or through negligence.
This is a State issue.
You are making an assertion that is not widely held and you are using it to shut down discussion.
You are undermining the Constitution just as much as the Planned Parenthood Baby Part sellers.
Your claim of virtue to support your authoritarianism just as hollow as theirs is.
Since the Roosevelt era, the commerce clause has been the clause that ate federalism, but recent supreme court rulings give hope that they are open to a more limited (rational) reading. It would be interesting if the same court that said they won’t decide on abortion also says, with the opposite effect, that congress won’t either. And it would be a nice stick in the eye to the people who attacked the court over its abortion decision.
Babies are wheat even if raised for personal consumption. Federal scythe regulation.
Conservatives should leave this to the states. Graham is out of line here
Will the Court remain consistent with Dobbs by saying the states can do practically whatever they want on abortion, but Congress can do little or nothing (presumably they can add or withdraw the Hyde Amendment)?
One analogy might be the capital punishment cases. Is there a national consensus? The Court has said there is no consensus opposed to any and all capital punishment. Are there some circumstances in which capital punishment, in any of its usual forms today, is a violation of the "cruel and unusual punishment" clause? The Court says yes: "Over the past decade, several U.S. Supreme Court rulings have narrowed the death penalty’s application in the states. The court has abolished the death penalty for mentally disabled offenders (Atkins v. Virginia, 2002), juvenile offenders (Roper v. Simmons, 2005), and for those convicted of raping a child where death was not the intended or actual result (Kennedy v. Louisiana, 2008)."
There is no real doubt that capital punishment brings about the death of a human being. The Court might some day say: there is a national consensus: abortion allowed, properly treated as a routine medical procedure, until at least 10 weeks. Not allowed without very strict scrutiny after say 30 weeks. Mississippi and other conservative states may stick with 15 weeks.
Other aspects of the unenumerated privacy right--unenumerated in that it goes beyond the old penumbras involving state surveillance, improper arrest and interrogation, parents having the right to take their kids out of school, etc. People siding with the FBI seem to have lost their attachment to the old penumbras of privacy.
Gay marriage: why not "full faith and credit": a valid marriage license from one state must be honoured in all. Possible issue with polygamy.
Purchase of contraceptives: a health product, if harmful, harmful only to individuals who use it. Arguably different from cannabis. How about individuals enjoying the "privileges and immunities" of citizenship--able to purchase contraceptives in one state, should be able to purchase in all. Cannabis should arguably be removed from Schedule III or whatever.
Sex acts other than missionary: national consensus for permitting anything consensual between any number of adults? Presumably no children--although some of the trans advocates I think are trying to soften public opinion on that.
Achilles: "Graham and Rubio are proving they are fascists"
I think it would be more accurate to term them willing handmaidens of actual fascists.
Graham 1.0 was an intimate partner with McCain in pushing the hoax dossier and attempting to get Trump impeached, removed from office, and, have no doubts about this, convict and imprison Trump. Lindsay flexed to Lindsay 2.0 to get reelected. How ridiculous were his almost nightly performances on Hannity for months leading up to the last election.
Oh that Lindsay. Boy was he really "mad" about what those terrible deep staters were up to from 2015 thru 2020...and boy howdy, as always, if you just give him power he will "Get To The Bottom Of It!".
There might even be 2 "harrumph"-filled letters sent instead of just 1!
Rubio will do anything, literally anything, the deep staters dictate to him. As he has in the past. His "performance" during the russia collusion hoax nailed that down, but only completely. I suspect he simply wants to occupy the oval office and doesn't care who really runs things. Which makes him perfect for the establishment.
Of course Commerce Clause jurisprudence is f*cked up. The idea of using the Commerce Clause (Congress has the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes)" to regulate, permit, or prohibit abortion is absurd.
If it were up to me, I'd base my federal abortion ban on the 14th Amendment ("nor shall any State deprive any person of life, liberty, or property, without due process of law"), but I don't think that a single Justice would buy that.
The gestational age of the unborn child that you want to kill may affect your commerce, if you're in the business of killing unborn children, but it's not an interstate commerce issue.
Graham seen wearing T shirt, trump is a F'ing liar, Go Blue. Let's make it state, I mean Federal, I mean state. You know what I mean.
Roberts can just call abortion a tax and do as he pleases.
Unfortunately for him, he’s not the swing vote anymore.
Regulating abortion isn’t a necessary and proper means of regulating commerce among the states. Is Congress trying to increase or decrease the supply of medical tools used in abortion?
Babies are wheat even if raised for personal consumption.
Separate the wheat from the chaff, the worthy from the burdens, in a planned plantinghood.
Drago said... Graham didn't step on his crank.
--
He's stepping on others', as well as blowing a select few.
Just watch his lame appearance on Watter's joint.
He repeats his mantra like he has a grenade up his ass.
Abortion is definitely commerce.
There are almost zero free abortions.
Abortions cost money. Hundreds of dollars, thousands of dollars.
If The Supreme Court had said, in Roe v Wade, that there is a right to abortion, but it has to be free, because of Lochner v New York, can’t bring that case back, so the right to abort pregnancies does not include commercial transactions. If the Supreme Court had done that, the fight would be dramatically reduced. Instead of 60 million abortions, it would be a hell of a lot less. Maybe 60,000. Pro-lifers would still be mad. You’d have some charitable doctor stabbing babies for free. And the media would say how wonderful this doctor is, providing abortions for free. Pro-lifers would still be mad. You are stabbing babies in the neck! That’s not charitable at all!
But the whole thing would be de-escalated. It would still bug the shit out of attorneys. But it would be on the level of killing an innocent person on death row.
If Hugo Black was alive, he would have brought up Lochner for sure, embarrassed the shit out of Brennan or Marshall or both, and that whole opinion would have been rewritten (again). But Black was dead. So they wrote what they wrote. But abortion is definitely commercial activity. I think it would be pretty hard to get a free one. Planned Parenthood is a billion dollar a year organization. They call themselves a “charity” but damn if it’s free.
Abortion is obviously commerce. If you’re wondering if people will cross state lines to obtain an abortion, I think that’s pretty obvious. I like federalism. It’s an important concept. The Supreme Court could (and might) use the 10th Amendment to strike down a federal abortion law. But they don’t have to.
It is kind of weird how America went from absolutely certain the Federal government didn't have the power to regulate alcohol so they passed an amendment so the Federal government could regulate it and ban it, to in a few decades later just assuming it had the power to regulate and ban things like marijuana. While I consider myself on the Pro-Life side and I think 15 weeks is a reasonable compromise on regulating abortions, I would gladly trade this proposed federal law being struck down if it reined in the commerce clause.
Congress can regulate commerce among several States. That commerce must first be definitionally legal within the contracting States. States first need to formulate and pass their individual abortion laws.
Tim, I haven’t read the bill. (Biden’s not going to sign it, so why waste time reading something that ain’t going to be a law anytime soon?). But Graham and Rubio are both pro-lifers, so my strong assumption is that it’s a ban, period.
Some people were furious at them on that thread, I think by mistake.
Abortion causes strong emotions in.people, on both sides.
Aha! The Infanticide Clause! As proposed by J Mengele(D).
"I'll kill anybody who gets in the way of my killing anybody" he shouted.
@Achilles. The 9th and 10th Amendments are many things, but crystal clear they are not, nor have they ever been.
As for whether the commerce clause is a sufficient warrant for Congressional regulation of abortion, the case law easily favors the affirmative as long as there is the barest fig leaf of commerce nexus. Did the Framers intend such a thing? Of course not. But sweeping language trumps a more modest intention.
I agree that federal legislation in this area is a bad idea, but it’s constitutionality is likely.
Finally, there seems to be some surprisingly silly confusion re Graham’s bill. It would not, as some commentators seem to believe, prevent states from enacting stricter laws, but would prevent more relaxed laws. Some Dems no doubt would accept a national 15 week rule that cuts the other way.
No, its not a "Ban". It legalizes abortion up to 15 week. Its pro-choice.
Republicans again prove their stupidity. The correct political position corresponds to Somin's and Glenn Reynolds' conclusions: Abortion is a matter for the states, not the Congress.
On the eve of Congressional elections which, incredibly, appear to be close, Graham's bill will mobilize the Pinkpussyhat Brigade and other, similar pinheads who comprise the intellectual base of the Democrat party. To hell with border security, inflation, crime, etc. The future of the nation clearly depends on women being able to have unprotected sex without concern for the consequences.
Republicans again prove their stupidity. The correct political position corresponds to Somin's and Glenn Reynolds' conclusions: Abortion is a matter for the states, not the Congress.
On the eve of Congressional elections which, incredibly, appear to be close, Graham's bill will mobilize the Pinkpussyhat Brigade and other, similar pinheads who comprise the intellectual base of the Democrat party. To hell with border security, inflation, crime, etc. The future of the nation clearly depends on women being able to have unprotected sex without concern for the consequences.
AND it apparently escapes everyone's notice that the Graham bill is nothing more than another gimmick that is intended, not to pass, but to make some political point.
hombre: "On the eve of Congressional elections which, incredibly, appear to be close, Graham's bill will mobilize the Pinkpussyhat Brigade and other, similar pinheads who comprise the intellectual base of the Democrat party."
Precisely as McConnell and Graham and the rest of the GOPe knowingly and purposely intend.
There is nothing accidental nor inadvertent about it.
The left wins the language battle again.
Somehow a bill LIMITING abortions IN MOST CASES is reported as "AN ABORTION BAN."
Note that around the world, most countries that allow abortions have some level of gestational limitation, usually somewhere between 12-24 weeks. But here, such a proposal is "extremist," a "ban" and a "threat to women's heath."
@rocean — No, it legalizes nothing. Instead, it supersedes more relaxed abortion laws but leaves intact stricter ones.
Four months to a new Congress. We'll see if anything happens before then.
It legalizes abortion up to 15 week. Its pro-choice.
What are you basing this on? It's illogical as shit.
It legalizes abortion up to 15 week. Its pro-choice.
You Are Wrong.
It legalizes abortion up to 15 week. Its pro-choice.
You Are Wrong.
(wrong like Blogger wrong)
rcocean is a Russian disinformation hoaxer
fuck! I have to vote for Biden now
rcocean is a repetitive bot from Blogger who is always wrong, at least in this thread
I am against Congress either protecting or prohibiting abortion for the same reason I wanted the USSC out of it. Federalism puts abortion squarely in the states province, and each individual state needs to decide for itself just what will and will not be allowed.
Why not just pass a national law protecting life at 15 weeks?
That removes the abortion debate.
Mike Petrik,
You have a strong case of fraud against all your English teachers.
I will grant that the wording of the 9th is longer than need be -- in modern usage it could simply say "The previously amendments are not meant as an exhaustive list of rights" , but the 19th? Seriously??? Seems plain as day.
@Kirk — Does the 10th Amendment include a state nullification power? Is it a mere truism ala Darby Lumber? Was Baker right? How about Garcia? I could go on, but I’m sure your English teachers have all the answers.
Graham's bill — if it advanced — would tempt liberals to argue for the conservative position on commerce power and conservatives to argue for the liberal position
Nope. It would cause conservatives to point and laugh, and say "you're absolutely right, we need to nuke all the abuses of the Commerce Clause", at which point the Left will run away, screaming in terror.
It will be a great show. Will the ultimate sacrament of abrotion trump the desire to have the entire country run from DC?
Probably only takes 1 if Kavanaugh, ACB & Roberts to join with Alito, Gorsuch, and Thomas, because I'm pretty sure Sotomayor is too stupid to see the problem, so we'd vote for abortion
iowan2 said...
Why not just pass a national law protecting life at 15 weeks?
That removes the abortion debate.
Well,
1: It's entirely unconstitutional. The US Constitution does not give the Federal Gov't any power over the question of abortion
2: You're just as much of a moron as Kennedy and O'Connor if you think that ANY ruling forced on the American people is going to "satisfy everyone" and "end the conflict".
~80% of the country does not agree with a 15 week cutoff. 40 - 50% want an earlier one, 30 -40% want a later one.
The whole point of Federalism is that it doesn't have too be a national issue. Whatever is in the majority in a given State should get their way.
The only Federal involvement should be a law the mirrors the laws against taking minors across State lines so you can get them someplace where they're over the age of consent before you fuck them.
If it's illegal to kill the baby in the State you live in, then taking that baby to a different State before you kill him or her should still be a crime. And anyone who aids you in that should go to jail, including the officers of any company that pays for it, and anyone who helps to give you the abortion.
(Note, CA requires a 2 week waiting period before you can buy a gun. It is not legal for you to go to another State and buy the gun there, and someone who sells you one will get into legal trouble for doing so.
So long as that applies to our 2nd Amendment rights, there's no possible justification for saying it shouldn't apply to baby killing.)
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