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 resident
Bush has weighed in on cloning. He's against it. According to White
House Press Secretary Ari Fleischer,
"The president
believes that no research — no research — to create a
human being [by cloning] should take place in the United States.
He opposes it on moral grounds." Bush is ready to sign legislation
that bans research into human cloning as soon as Congress sends
it to him.
The president's
moral views on cloning are not unreasonable — though any time
you find yourself agreeing with Luddites like Jeremy
Rifkin and Kirkpatrick
Sale is probably a good time to reconsider whether you're right.
But whether or not cloning research is a bad idea, the president
needs to spend a lot more time thinking about whether it's something
that the federal government even has the power to ban.
The federal
government, as the president has reminded us, is a government of
limited powers, powers that are enumerated in the Constitution.
And nothing in the Constitution grants the federal government the
power to ban research into cloning, or to suppress other types of
science.
The fact that
Congress has the power to raise armies, enact bankruptcy laws, and
create a Postal Service obviously doesn't give Congress the power
to ban scientific research. There's only one enumerated power of
Congress for which even a bad-faith argument can be made in favor
of congressional power. The Constitution grants Congress power "to
regulate Commerce with foreign nations, and among the several states,
and with the Indian Tribes" (Art. I, sec. 8, cl. 3). From the
1960s through the 1980s, the Supreme Court interpreted this congressional
power to regulate some types of commerce as congressional power
to regulate anything, anytime, anywhere.
In the 1995
case, United States v. Lopez, the Supreme Court declared
that Congress could not use its power "to regulate Commerce
… among the several states" as a pretext to ban simple
possession of firearms near schools. Justice Clarence Thomas pointed
out that it was absurd to argue that the power to regulate interstate
commerce was the power to regulate everything. If so, it would have
been pointless for the Founders to bother listing various congressional
powers (e.g., bankruptcies, copyrights, taxes), since the power
to regulate interstate commerce would be the same as the power to
do everything.
Chief Justice
Rehnquist's majority opinion for the Court set forth the three circumstances
under which Congress may use the interstate-commerce power:
(1) To regulate
the channels of interstate commerce. For example, requiring that
a product may only be sold across state lines under certain conditions.
This is really the core of the interstate-commerce power, which
was originally created primarily to give Congress the power to legislate
against state barriers to interstate trade. So under the Lopez
rules, Congress could probably bar the interstate sale of cloned
goods. That's not the same as barring research that takes place
within a state.
(2) To regulate
the instrumentalities of interstate commerce. For example, setting
labor and safety standards for railroads and airplanes (obviously
irrelevant for a research ban.)
(3) To regulate economic activity that has a substantial effect
on interstate commerce. As Justice O'Connor explained in a 1985
case, the reason that Congress, which has authority only over
interstate commerce, can sometimes regulate intrastate
commerce is because of the separate congressional power "to
make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers" (Art. I, sec. 8, cl. 18). Say
Congress wants to prohibit the interstate sale of pelts from endangered
animals; Congress finds that it is impossible, as a practical matter,
to stop the interstate sale unless Congress also bans the local
sale. The ban on local sales would "necessary and proper"
to the ban on interstate sales.
Can a cloning
research ban be upheld under prong three of Lopez? Probably
not.
Scientific
research may involve money (e.g., researchers earn salaries, equipment
must be purchased), but the Supreme Court doesn't believe that everything
that has some connection to money is necessarily an economic activity.
In Lopez, the defendant took a gun onto school property for
the purpose of completing a gang-related sales transaction. The
Court didn't find that the act of gun possession was thereby transformed
into economic activity.
Here's another
example: Even though selling books across state lines is an economic
activity, mere reading is not an economic activity — even if
what one learns from reading will have economic consequences. Similarly,
mere research might not be considered an economic activity. Most
people wouldn't say that a classroom discussion between a professor
and his students classifies as "commerce." Academic inquiry
may require paying salaries, but that doesn't turn the academic
research itself into commerce.
Cloning-ban
advocates could certainly point out that cloning research eventually
affects the national economy. Researchers will buy and sell products;
depending on what the researchers discover, various other products
will be bought and sold; some of those transactions will cross state
lines.
But this kind
of attenuated reasoning hasn't been popular with a majority of the
Court lately. In Lopez, the Solicitor General (and the four
dissenting Justices) pointed out that guns near school sometimes
affect the quality of education, and education affects a person's
earning power, and thus affects interstate commerce.
Last summer,
in the Morrison case, Congress had attempted to use the interstate-commerce
power to allow victims of sexual assault to sue in federal court.
The Solicitor General (and the Court's four dissenters) argued that
sexual assault makes women more reluctant to participate in interstate
commerce, as well as in other aspects of economic life, and, therefore,
sexual assault substantially affects the national economy.
In both the
Morrison and Lopez case, the Court's majority pointed
out that the national economy isn't the same as interstate commerce.
If the "everything-eventually-affects-the-economy" reasoning
were allowed to hold sway, the Court explained, the federal government
would enjoy infinite, not limited and enumerated, powers.
Even if the
Supreme Court were to repudiate Lopez and Morrison,
and to start allowing Congress to make any law it wants on any subject,
President Bush shouldn't go along. He campaigned on federalism,
not on expanding the aegis of centralized power.
Of course,
the fact that Congress doesn't have power over a particular issue
doesn't present state legislatures from considering laws about guns
near schools, sexual assault, and cloning research. Likewise, Congress
has the choice of barring the use of federal funds to support cloning
research.
President Bush
has spoken of his admiration for two Justices who defend federalism
with great vigor: Clarence Thomas and Antonin Scalia, both of whom
were in the majority in Lopez and Morrison. We hope
that President Bush thinks seriously about the lessons that these
Justices have to teach about limits to federal power — for
these lessons are simply reminders of the plain language and original
intent of our Constitution.
The first paragraph
of the legal analysis in Lopez ought to be inscribed on the
heart of every federal official:
"We
start with first principles. The Constitution creates a Federal
Government of enumerated powers. See U.S. Const., Art. I, 8. As
James Madison wrote, '[t]he powers delegated by the proposed Constitution
to the federal government are few and defined. Those which are
to remain in the State governments are numerous and indefinite.'
The Federalist No. 45. This constitutionally mandated division
of authority 'was adopted by the Framers to ensure protection
of our fundamental liberties.' Gregory v. Ashcroft,
501 U.S. 452, 458 (1991). 'Just as the separation and independence
of the coordinate branches of the Federal Government serves to
prevent the accumulation of excessive power in any one branch,
a healthy balance of power between the States and the Federal
Government will reduce the risk of tyranny and abuse from either
front.' Ibid."
When you occupy
the bully pulpit, there is a strong temptation to impose a Washington,
D.C., solution whenever a problem hits the nightly news. But if
President Bush is to live up to his promises of limited government
— and the hopes of the people who elected him — he must
exercise the humility and restraint that have been hallmarks of
his administration to date, and he must recognize that not all problems
are federal problems.
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