A classic example of a decision that will be pilloried because the law it struck down is virtuous, never mind the actual constitutional question involved. It reminds me of lefties arguing during Obama’s second term that he somehow enjoyed extra constitutional power to change U.S. immigration law via executive order because DREAMers are sympathetic and those damned right-wingers in Congress wouldn’t pass an amnesty for them. The lefty rule: If your intentions are good enough, the Constitution lets you do it.
Not so. But admittedly, SCOTUS’s Commerce Clause jurisprudence is so obtuse that both sides can plausibly argue the legal merits of their positions on this ruling.
U.S. District Judge Bernard Friedman concluded that “as despicable as this practice may be,” Congress did not have the authority to pass the 22-year-old federal law that criminalizes female genital mutilation, and that FGM is for the states to regulate. FGM is banned worldwide and has been outlawed in more than 30 countries, though the U.S. statute had never been tested before this case.
“As laudable as the prohibition of a particular type of abuse of girls may be … federalism concerns deprive Congress of the power to enact this statute,” Friedman wrote in his 28-page opinion, noting: “Congress overstepped its bounds by legislating to prohibit FGM … FGM is a ‘local criminal activity’ which, in keeping with long-standing tradition and our federal system of government, is for the states to regulate, not Congress.”
Great job, judge. Now FGM is legal in Michigan. Wait, no it isn’t: Per the Detroit Free Press, Michigan’s law banning the practice actually imposes a sentence (as many as 15 years in prison) three times as long as the federal one (five years). But that law was passed recently, after the defendants in the case before Friedman were accused, and therefore they can’t be tried under it. It’s the federal law or nothing in this instance.
Well, then, says Friedman, it’ll unfortunately have to be nothing. The takeaway from modern landmark Supreme Court cases on the Commerce Clause is that Congress doesn’t get to regulate anything it wants just because it may have some abstract effect on interstate commerce, however slight.
It’s not clear if “commerce” is even happening in some cases insofar as some doctors may not be charging the parents of their Muslim “patients,” i.e. victims.
Tiana Lowe counters with a good point, though: Congress often cites the Commerce Clause as grounds for regulating abortion, doesn’t it? If the commerce power is strong enough to let the feds impose some limits on the mutilation of children in the womb, why isn’t it powerful enough to let them prevent the mutilation of children after they’re born? (To which some libertarians would say, “It isn’t! Abortion shouldn’t be viewed as ‘commerce’ either.”) To the extent there’s a distinction between the two for Friedman, it seems to lie in the concept of “substantial” commercial activity. Like it or not, the volume of abortion in the United States is substantial. FGM comparatively is rare. If the effect on interstate commerce is small, a practice should be left to the states to regulate. To believe otherwise, that any instance of commercial activity is enough to justify federal regulation, is to concede that the commerce power is effectively limitless. And the entire point of the Supreme Court’s rulings on the Commerce Clause over the past 25 years is that the commerce power isn’t limitless. Reeeeeeeeeally broad, but not limitless.
And before you ask, “So how substantial an effect on commerce would FGM trafficking need to have for it to become fair game under the Commerce Clause?” — who the hell knows. When I said the Court’s jurisprudence on this point was obtuse, I meant it. The left, of course, acknowledges no conceptual limits on the Commerce Clause precisely because it wants the federal government to have regulatory power over everything. (Except, er, abortion.) If Trump loses in 2020 and his successor starts filling vacancies, the Commerce Clause will suddenly reach FGM and everything else under the sun.
Needless to say, every state in the country should ban this barbarity to the extent that existing criminal laws prohibiting assault and torture don’t already reach it. And it should carry stiffer sentences than 15 or (lord knows) five years. Twenty-seven states already do ban it and you may be surprised to learn that the ones that don’t are mostly red. Presumably that’s because their Muslim populations are small and so they’ve scarcely encountered any instances of the practice firsthand. If nothing else good comes out of Friedman’s decision, hopefully it’ll spur them to act. Presumably they could just take the guts of the federal statute and enact that as their state statute, albeit with a much longer sentence. And if any state refused, it’d be perfectly fine and fair to organize an economic boycott to punish them a la the left’s tactics when a red state passes a law about transgender bathrooms or whatever. But no state’s going to refuse. Insofar as FGM is legal anywhere, it’s because some jurisdictions simply haven’t gotten around to banning it yet. Chop chop.