A shrewd primary pander, even though the odds of such a law passing Congress *and* surviving Supreme Court scrutiny are teeny tiny — for now. But within 10 years? If Democrats flip the Senate and President Harris gets to replace a few conservatives on the Court with liberals?
Sure, this might fly. Put nothing past them, especially when it comes to abortion.
Her proposal will target states with a history of passing abortion laws that were later struck down for contradicting Roe, not any state with a pro-life majority. But it amounts to roughly the same thing: Virtually any attempt to limit abortion rights in a meaningful way during the Roe era has been rejected by the courts, so in practice any pro-life state that’s attempted to legislate on the subject will be on the DOJ’s blacklist.
Ms. Harris, who is seeking the Democratic nomination for president, will call for what is known as a “preclearance requirement” at a town-hall-style event that will air Tuesday night on MSNBC, a senior campaign official said. The requirement would apply to jurisdictions with a history of violating Roe v. Wade, the Supreme Court’s landmark decision in 1973 that established the constitutional right to abortion. These jurisdictions would have to clear new abortion laws with the Justice Department before putting them into effect…
Though several Democratic presidential candidates have already called on Congress to codify abortion rights, Ms. Harris’s campaign says her proposal goes further by shifting the burden to states with a history of skirting Roe; the campaign official cited South Carolina, Iowa and Georgia as examples…
The Harris campaign official said any change to abortion laws in a covered jurisdiction would remain legally unenforceable until the Justice Department determined that it adhered to the standards laid out in Roe and by the Women’s Health Protection Act, which remains stalled in the Republican-controlled Senate. Ms. Harris’s campaign also said a number of guardrails would be put in place to protect the preclearance requirement regardless of a particular administration’s view of abortion.
If “preclearance” of state laws by the DOJ strikes you as an extraordinary affront to federalism, well, it is — in most cases. Preclearance already exists in American law to protect voting rights, though, because of the south’s history of preventing blacks from voting. The Fifteenth Amendment, ratified during Reconstruction, guaranteed that right and specifically granted Congress the power to enforce it; the Voting Rights Act of 1965, which contained a “preclearance” requirement for state laws that might affect voting rights, was the result. SCOTUS upheld that law more than 50 years ago, citing the fact that it was passed pursuant to an explicit grant of authority in the Fifteenth Amendment. That is to say, preclearance in the context of voting was an extraordinary remedy to an extraordinary crime, the systemic suppression of an entire race. A war was fought over it. The losers ceded some of their sovereignty to the winners, as tends to happen in the aftermath of war.
The question for Harris is why we should extend that extraordinary remedy to abortion. There’s no constitutional amendment that speaks directly to the issue the way the Fifteenth Amendment speaks directly to voting rights. The right to choose is famously an unwritten right, hidden away in the penumbras of the Fourteenth Amendment. Section 5 of that amendment does give Congress the power to legislate to enforce it, but of course that goes both ways: Pro-lifers would claim that Congress could ban abortion nationally under Section 5 to prevent blue states from passing laws that would deprive children of life without due process of law. If Harris’s “preclearance” idea was enacted by a Democratic Congress and came before SCOTUS, the conservative majority would demand to know which provision of the Constitution grants Congress the power to supervise state action on a subject that isn’t even mentioned in the document. What would Harris say? If the feds can require states to seek pre-approval of their laws on the subject of abortion, why couldn’t they require states to seek pre-approval of laws on any subject in which they’ve run afoul of court rulings previously?
If you need a hypothetical, imagine a Republican White House and Congress passing a federal law requiring blue states to seek “preclearance” of any new restrictions on gun rights, at least if they’ve had one or more of their laws struck down previously as violations of the Heller case and its progeny. That’s not even a hypothetical, really. If Harris’s expansion of “preclearance” got traction, Republicans would assuredly expand it to gun rights and beyond once they reclaimed power.
As I say, though, it’s a smart pander because it shows Democratic voters that Harris is willing to do something to protect abortion rights that other candidates haven’t considered, which earns her the title temporarily of Most Pro-Choice in the primaries. Never mind that her idea won’t get past a conservative Court, never mind that it’s DOA in Congress unless Democrats enjoy total control of government. If it did somehow pass, it would give Dems a bit of extra insurance in protecting Roe: Even if the Supreme Court remained conservative for the foreseeable future, a Democratic DOJ could swat down state anti-abortion laws and hope that the Court didn’t take those decisions up on appeal. Although it’d be a glorious irony if Harris’s “preclearance” idea became law and ended up so heavy-handed in practice that it antagonized the federalist-minded conservative SCOTUS into overturning Roe and striking down the preclearance statute.
What I don’t immediately see is what Harris’s plan would achieve that a simple federal law guaranteeing the right to abortion wouldn’t also achieve. Various other Dem candidates have endorsed that idea — have Congress pass a law saying abortion is legal everywhere, just in case the Court blows up Roe. If that happened (and if the Court found that Congress had the power to legislate on the issue) then abortion rights would remain safe so long as Democrats controlled any part of government. Under Harris’s “preclearance” scheme, though, where the DOJ is the main actor, all Republicans would need to do is win the White House to ensure that red states could legislate against abortion. Imagine there was a federal pro-choice law on the books right now, with our current configuration of government, and SCOTUS struck down Roe tomorrow. Republicans would be stuck since of course Pelosi’s House would never agree to repeal that law. Whereas under Harris’s plan, where there’s no federal pro-choice law but rather a DOJ “preclearance” scheme, Bill Barr could start waving red states through on their pro-life laws immediately. What am I missing?