July
2, 2002, 8:45 a.m. One
Bad Turn Doesn’t Merit Another
Congress usurps
power even more than the Supreme Court.
he
editors of National
Review rightly criticize the Supreme Court for usurping power
beyond its constitutional mandate. Yet were Congress to follow NR's
advice and pass Representative Steve Chabot's bill to ban partial-birth
abortion, it too would be engaged in an act of usurpation. As NR
notes, Chabot's bill "jumps through the hoops that the Court, and
not the Constitution, has set up." Precisely. Chabot's bill may comply
with all of the requirements the Court imposed on state partial-birth-abortion
statutes in Stenberg
v. Carhart, but it does not overcome the hurdles actually imposed
by the Constitution.
There are two plausible
constitutional bases for a federal partial-birth ban: the interstate commerce
clause and section 5 of the Fourteenth Amendment. Neither provision grants
Congress sufficient power to enact such legislation. While there is no
constitutional basis for invalidating a state ban on partial-birth
abortion — the Supreme Court's Stenberg decision notwithstanding
— the Court would have ample justification to void a federal ban
enacted by Congress.
Article I, section
8 of the Constitution grants Congress the power to regulate commerce "among
the several States." For decades Congress treated this power as an
open-ended grant of legislative authority, and the courts temporarily
acquiesced. Yet this did not change the fundamental fact that Congress's
power was limited to matters relating to commercial activity, and not
just any commercial activity, but commerce "among the several States."
Abortion, like doctor-assisted
suicide, gun possession, domestic violence, local land-use, and family
law, is not "commerce." As such, it is a matter our constitutional
system leaves to the states.
Even under the Court's
permissive interpretation of the interstate commerce clause enunciated
in United
States v. Lopez, a complete federal ban on partial-birth
abortion would be unconstitutional. Under Lopez, Congress may regulate
articles of commerce, instrumentalities of commerce, and those matters
"substantially affecting" interstate commerce. This power may
be sufficient to regulate the sale of narcotics or insurance fraud, but
it does not cover local activities, such as possession of a gun in a school
zone or arson of a family home. Nor does it cover private the provision
of a medical procedure, as such. That people will pay for the procedure
is insufficient. People buy guns and burn down homes for financial gain.
That alone does not make such activities any concern of the federal government.
Alfonso Lopez was helping to sell the gun he possessed when he was arrested
for violating the Gun Free School Zones Act. Nonetheless, the Supreme
Court wisely declared the GFSZA unconstitutional.
It is certainly possible
that Congress could craft a statute that would pass muster with lower
courts, if not the Supremes. It is commonplace for Congress to prohibit
all instances of an activity that "affect" interstate commerce,
leaving it to federal prosecutors to furnish facts demonstrating a sufficient
nexus between commerce and the crime in question. Congress could, for
example, prohibit all abortion-related procedures in which doctors use
medical equipment or pharmaceuticals which traveled in interstate commerce.
Or, Congress could prohibit economic transactions relates to such procedures,
or the purchase of medical equipment to be used for such procedures. In
this fashion, Congress could try and escape from its constitutional constraints.
Yet engaging in such legislative legerdemain with the sole purpose of
evading constitutionally proscribed limits on federal power is itself
an abdication of Congress' responsibility to uphold the Constitution.
It makes a mockery of the oath all members take upon assuming their offices.
There is an appealing
argument that a federal partial-birth ban would be a proper exercise of
Congress power under section 5 of the Fourteenth Amendment. The Fourteenth
Amendment provides that states must provide all people with "due
process" and "equal protection." Section 5 of the Amendment
grants Congress the power to "enforce" these provisions "by
appropriate legislation." A partial-birth-abortion ban, some argue,
is simply "appropriate legislation" to ensure that unborn children
receive "equal protection" under the law. Not quite. Section
5 grants Congress the power to protect those rights that the Amendment
itself protects. It does not give Congress the power to extend those rights
or to identify new classes of people deserving of such protection. To
support a partial-birth claim, one would have to make the implausible
argument that the Amendment — passed in the wake of the Civil War
to ensure equal protection for blacks — sought to ensure "equal
protection" for fetuses. This is tantamount to arguing that a state's
failure to prohibit partial-birth abortion — or, for that matter,
any abortion — is itself a violation of constitutional rights. One
cannot make such an argument and seriously critique the Supreme Court
for unbridled activism in the same breadth.
As the editors note, when one branch repeatedly transgresses the limits
of its Constitutional power, other branches will respond. This helps explain
the string of recent Supreme Court decisions invalidating federal legislation
that exceeds the scope of Congress's enumerated powers. At least on the
margins, the Court is helping to keep Congress in line.
Congress, no less
than the Court, has an obligation to uphold the Constitution. When Congress
enacts legislation clearly exceeding its delegated powers, that act is
no less an abdication of its duty than when the Supreme Court invalidates
legislation without regard for constitutional principle. Congress has
a hard enough time as it is observing its constitutional bounds. It should
not be encouraged any further.
—
Jonathan
H. Adler is an assistant professor at Case Western Reserve University
School of Law and an NRO contributor.
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