While I agree that Congress could do a great deal of mischief under authority granted it by the Commerce Clause (e.g., banning interstate transportation of abortion drugs, supplies, and equipment), my reading of Dobbs is that is PRECLUDES Congress from enacting a nationwide, statutory ban on abortion. [See Congressional Research Service,…
While I agree that Congress could do a great deal of mischief under authority granted it by the Commerce Clause (e.g., banning interstate transportation of abortion drugs, supplies, and equipment), my reading of Dobbs is that is PRECLUDES Congress from enacting a nationwide, statutory ban on abortion. [See Congressional Research Service, "Congressional Authority to Regulate Abortion," CRS Legal Sidebar, July 8, 2022.]
This is because:
1. Congress may only enact legislation under a specific power enumerated in the Constitution, and cannot act beyond the scope of its powers to intrude on state sovereignty.
2. The states’ broad authority is subject only to limitations imposed by the Supremacy Clause [Article VI], which makes federal law “the Supreme Law of the Land” and prohibits states from contravening the Constitution or lawful congressional enactments.
3. Dobbs holds that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including…the Due Process Clause [Section 1] of the Fourteenth Amendment.” [597 U.S. 215 (2022), p. 5.]
4. The Tenth Amendment reserves to the states the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states. The Supreme Court has interpreted this amendment as prohibiting Congress from “commandeering” such powers. [See Murphy v. NCAA, 584 U.S. 453 (2018). Writing for the majority, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to affirmative congressional commands, as opposed to when Congress prohibits certain state action. Finding the distinction between affirmative requirements and prohibitions empty, the Court held that both types of commands equally intrude on state sovereign interests.]
5. Therefore, unless and until Dobbs is overturned, the authority to regulate abortion rests solely with the states and Congress may neither mandate nor prohibit a national right to abortion. [“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives [i.e., state legislatures].” Alito, J. writing for the majority in Dobbs. 597 U.S. 215 (2022), pp. 78-9.] Bracketed clarification mine.
Consequently, Congress has no authority to enact a nationwide abortion ban. Any such statute could be challenged as unconstitutional under the Tenth Amendment. And, given the Court’s ruling in Murphy v. NCAA (with its majority opinion written by Justice Alito), it is virtually certain to rule in favor of the plaintiffs on anti-commandeering grounds.
This also means, however, that if a national right to abortion is to be restored, it must address the constitutional obstacles to doing so.
One option that should be considered is for President Biden to direct the National Archivist to certify the Equal Rights Amendment as the 28th Amendment AS SOON AS POSSIBLE, but no later than leaving office. This is justified because: (1) the ERA has been approved by the requisite 38 states and (2) there is no CONSTITUTIONAL limit on the time allowed to ratify an amendment. [See Allison Held et al., “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” William & Mary Journal of Women and the Law, Spring 1997.] And, in any case, who cares if it's potentially illegal? As a legitimate exercise of core executive power, it cannot be challenged as being illegal. Let MAGA choke on the SCOTUS decision in Trump v. U.S.
The Dobbs decision could then be appealed back to the SCOTUS, on the basis that the ERA provides the constitutional authority for a woman's right to privacy and control over her own body that the Court failed to find in the Constitution as it currently reads.
While I agree that Congress could do a great deal of mischief under authority granted it by the Commerce Clause (e.g., banning interstate transportation of abortion drugs, supplies, and equipment), my reading of Dobbs is that is PRECLUDES Congress from enacting a nationwide, statutory ban on abortion. [See Congressional Research Service, "Congressional Authority to Regulate Abortion," CRS Legal Sidebar, July 8, 2022.]
This is because:
1. Congress may only enact legislation under a specific power enumerated in the Constitution, and cannot act beyond the scope of its powers to intrude on state sovereignty.
2. The states’ broad authority is subject only to limitations imposed by the Supremacy Clause [Article VI], which makes federal law “the Supreme Law of the Land” and prohibits states from contravening the Constitution or lawful congressional enactments.
3. Dobbs holds that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including…the Due Process Clause [Section 1] of the Fourteenth Amendment.” [597 U.S. 215 (2022), p. 5.]
4. The Tenth Amendment reserves to the states the powers not delegated to the federal government by the Constitution, nor prohibited by it to the states. The Supreme Court has interpreted this amendment as prohibiting Congress from “commandeering” such powers. [See Murphy v. NCAA, 584 U.S. 453 (2018). Writing for the majority, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to affirmative congressional commands, as opposed to when Congress prohibits certain state action. Finding the distinction between affirmative requirements and prohibitions empty, the Court held that both types of commands equally intrude on state sovereign interests.]
5. Therefore, unless and until Dobbs is overturned, the authority to regulate abortion rests solely with the states and Congress may neither mandate nor prohibit a national right to abortion. [“We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives [i.e., state legislatures].” Alito, J. writing for the majority in Dobbs. 597 U.S. 215 (2022), pp. 78-9.] Bracketed clarification mine.
Consequently, Congress has no authority to enact a nationwide abortion ban. Any such statute could be challenged as unconstitutional under the Tenth Amendment. And, given the Court’s ruling in Murphy v. NCAA (with its majority opinion written by Justice Alito), it is virtually certain to rule in favor of the plaintiffs on anti-commandeering grounds.
This also means, however, that if a national right to abortion is to be restored, it must address the constitutional obstacles to doing so.
One option that should be considered is for President Biden to direct the National Archivist to certify the Equal Rights Amendment as the 28th Amendment AS SOON AS POSSIBLE, but no later than leaving office. This is justified because: (1) the ERA has been approved by the requisite 38 states and (2) there is no CONSTITUTIONAL limit on the time allowed to ratify an amendment. [See Allison Held et al., “The Equal Rights Amendment: Why the ERA Remains Legally Viable and Properly Before the States,” William & Mary Journal of Women and the Law, Spring 1997.] And, in any case, who cares if it's potentially illegal? As a legitimate exercise of core executive power, it cannot be challenged as being illegal. Let MAGA choke on the SCOTUS decision in Trump v. U.S.
The Dobbs decision could then be appealed back to the SCOTUS, on the basis that the ERA provides the constitutional authority for a woman's right to privacy and control over her own body that the Court failed to find in the Constitution as it currently reads.