The bill the Republicans in the House just passed to ban abortions after 20 weeks undermines every argument the party has made against the abuse of the Constitution’s Commerce Clause to allow the federal government to meddle in state matters. One’s position on abortion isn’t relevant to the ethics and law here: I agree whole-heartedly with the ban in principle.
Abortion isn’t commerce, however. For decades, the Commerce Clause’s provision giving Congress the power to “regulate commerce . . . among the several states” has been stretched beyond all reason and the limits of language by Democratic majorities. It has been conservative legislators, scholars and pundits who have screamed about it. Indeed, this was the primary basis for the attack on Obamacare in the Supreme Court case NFIB v. Sebelius, and the majority did find that the so-called “individual mandate” exceeded Congress’s Commerce Clause limitations.
The abuse of the Commerce Clause has been the primary means by which the Founders’ intentional restraints on federal government power over the states and individuals have been circumvented by big government advocates. Some of the measures that were ingeniously slipped by the Commerce Clause using dubious justifications have been necessary and beneficial, like Federal laws against discrimination. Those measures, however, greased an ever-slipperier slope that has made the Clause a virtual nullity.
Supposedly, Republicans believed that it was important to start taking the Constitutional limits on Congressional power seriously again, because the alternative would be a Congressional dictatorship over the states. Now we know that the Republicans are just as willing to trample the Commerce Clause as Democrats are, as long as their pet social issues are being served.
The word for this is hypocrisy. Another one is stupidity. If you won’t abide by your own principles, nobody should do anything but laugh when you raise those principles in arguments against your adversaries.
Here is Jonathan Adler, Constitutional scholar, explaining why the House has no business regulating abortion:
For even if one assumes that a prohibition on post-20-week abortions would be constitutional if enacted by a state, that does not mean that Congress can enact such a measure. The federal government, after all, is a government of limited and enumerated powers. Whereas states retain residual police power authority to protect public health and welfare, the federal government has no such authority. Just as there is no constitutional basis upon which Congress could enact a general law against murder, there is no clear constitutional basis for a prohibition or regulation of abortion. As with murder, it’s a matter generally left to the states….
Abortion is not commerce, and not all abortions necessarily occur within the scope of commerce, let alone commerce “among the several states.” As Glenn Reynolds notes, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.” For this reason, conservative Republicans who urge courts to respect the limits on federal power — and who argued the individual mandate exceeded the scope of Congress’ Commerce Clause power — should be embarrassed to support the invocation of commerce here…
[S]tate laws failing to regulate abortion as much as Congress might like are really no different than state laws allowing lethal self-defense in the home or doctor-assisted suicide. Whether or not to prohibit abortion 20 weeks after conception is not a question the federal government is empowered to address. Under our constitutional structure, such questions are the province of the states.
This appears to be a Republican specialty: impressively wielding conservative governing principles when they support their policy convictions, then abandoning them at will to pursue a conservative social agenda. This does not position the party’s standard bearers well when they want to call attention to a particularly cynical and principle-free big-government Democrat like Hillary Clinton. Integrity is a missing character trait among our national leaders, and without it, trust is impossible. Without trust, democracy falters.
As we have seen.
I don’t know why the importance of displaying integrity is so hard for Republicans to grasp, but obviously it is. The other problem is incompetence. These people really think it makes make sense to disarm one of the party’s strongest arguments against federal government abuse of power in order to pass a bill that will be vetoed anyway.