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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.