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. Continue reading