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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, March 06, 2006

Now in power, "conservatives" reverse their purported belief in federalism

By Hypatia

It has long been assumed that if Roe v. Wade were overturned, we would be faced with a state-by-state legislative battle over abortion regulations. But many Roe opponents seem to have their eye on a bigger prize: that abortion should be a federal crime.

Those who believe that are now in power. And if Roe v. Wade is overturned, it plausibly could happen, given how Bush conservatives have "grown" in their understanding of the Commerce Clause in the United States Constitution, Article I Section 8.

Glenn has many times argued that Bushism is not reasonably considered coterminous with any heretofore known strand of conservatism, and among the areas in which this assessment is proven true is in the positions taken by the Bush Department of Justice, as well as by at least one of their "conservative" allies on the Supreme Court, Antonin Scalia. These legal positions directly implicate states rights, federalism (the principle that all powers not vested in Congress in Article I are reserved to the states) and the Commerce Clause, and they do not yield historically "conservative" outcomes, not unless the "right" result is all that matters to Bush conservatives.

Historically, conservatives and libertarians have decried and repudiated the High Court's 1942 ruling in Wickard v. Filburn -- a decision holding that a farmer cannot grow wheat in his own state, on his own land, for his own consumption, if a New Deal Congress legislates otherwise. They have insisted that the Wickard Court expanded the Commerce Clause -- which vests authority in Congress to regulate interstate commerce -- such that it now eviscerates federalism.

Conservatives have warned that Congress is now dangerously free to legislate in any intrastate area it wishes, with virtually no facet of life or law reserved for the exclusive law-making province of the several states. Indeed, many have argued that this expansive understanding of the Commerce Clause fundamentally subverts the political order bequeathed to us by the Founders, and Robert Bork, among others, has sought to pull the courts back from this error; it has been standard conservative conventional (and in my view, correct) wisdom that this was a crucial thing to accomplish. But Bush "conservatives" are in full retreat from a desire to rein in the Commerce Clause, as recent history shows. And it matters.

A few months ago, the Supreme Court in the case of Gonzalez v. Oregon, ruled that the citizens of Oregon were entitled to permit physicians within their borders to prescribe fatal doses of narcotics to terminally ill patients who wished to exercise the option. The only reason that the right of Oregonians to pass such a law was in legal dispute, is because then-Attorney General John Ashcroft decided -- in the immediate months after 9/11, when he apparently had little else to do -- that it was urgent to "interpret" The Controlled Substances Act ("CSA") as prohibiting Oregon's preference in the matter. The federal government's over-bearing intrusion into such anguished, individual end-of-life decisions failed, in a majority Opinion written by Justice Anthony Kennedy , but not for want of trying by Justice Scalia, who dissented.

Scalia's position is simply astonishing, on multiple levels (my emphasis):

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality–for example, by banning the interstate shipment oflottery tickets, or the interstate transport of women for immoral purposes.

Got that? Interstate transport. Scalia completely overlooked -- because he needed to in order to reach his preferred result regarding "public morality" -- that Oregon was not exporting its physician-assisted suicide program; it is an intrastate matter, and as such should not, by any conservative understanding of the scope of the Commerce Clause, be within the reach of Congress, the CSA, or the DoJ. Scalia is chanelling Wickard, but won't admit it.

How do the Bush supporters at National Review Online parse Scalia's dissent? Well, long-time contributor Hadley Arkes opens by violating Godwin's Law (I'm not quoting that putrid nonsense, click the link if you wish to read it), and he is having none of the idea that the Commerce Clause is in any tension with that federalism thing, not at all (and he thinks any who disagree with him are libertarians, but there certainly are others):

The libertarians are headed on a path of incoherence if they think that federalism offers a way to put aside the moral questions that vex our politics. The scheme offered to us in the Oregon decision asks us, in the name of federalism, to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine.

Arkes, however, is logically correct about this: But the problem here is taken into another register as soon as we have found compelling reasons for regarding the regulation of drugs as a scheme that must have a national, or federal, sweep. Once we have made that judgment, the question of regulating drugs simply cannot be detached from the question of what is a legitimate or illegitimate use of drugs. And that in turn cannot be separated from the question of the rightful and wrongful ends of medicine.

Well, if Scalia and Arkes are correct that the federal government may properly and constitutionally regulate interstate commerce, for the purpose of "protecting" intrastate public morality, then why not criminalize abortion in all 50 states? If it is the case that conservative principles and federalism allow Congress to legislate regarding the "moral questions that vex our politics, " then why should not a pro-life, GOP Congress ban abortion nationwide?

And, not surprisingly, that is exactly how a GOP Congress and Bush's DoJ see things. As Jacob Sullum, Senior Editor at Reason, elaborates regarding the Partial Birth Abortion Ban Act currently under review by the Supreme Court, and defended by the Bush DoJ (my emphasis):

If it's hard to locate a right to abortion in the Constitution, it is no less difficult to find congressional authority to regulate abortion. The Partial Birth Abortion Ban Act seeks to do so under the laughable pretext that every abortion is part of interstate commerce.

Abortion rights supporters may have invited this sort of legislation by federalizing the abortion issue and pushing a limitless reading of the power to regulate interstate commerce. But it's conservatives who have responded by sacrificing their own principles.

Thus, if Roe v. Wade and its progeny are overturned, conservatives may very well push for a reverse-Roe, in which Congress could criminalize abortion everywhere in the nation. Certainly, I did not previously think the Supreme Court would possibly uphold such a pernicious federal law.

I strongly suspect that Sam Alito would balk at such a notion. But the more-acceptable-to-liberals John Roberts might well sign on (along with Scalia) -- and in a reverse of concerns around the blogosphere, I was more unhappy with his nomination, precisely because I thought he would be so receptive to a distorted, and wildly expanded, Commerce Clause, enabling all sorts of legislation to be federalized by the Congress. The salient point is, however, that if the Congress and Bush's DoJ insist that Congress may legislate about one particular abortion procedure (PBA's), what constitutional principle is left to prevent that body's banning abortion in total?

With Bush "conservatism" in ascendancy, the old jurisprudential complaints are discarded, and federalism is a quaint -- perhaps liberal! -- proposition now; all is now possible and permitted in the expansive and expanding Executive and Legislative branches of the Bush GOP. And if you think I'm overstating things, that a Bush (and "I-can-diagnose-Terri-Schiavo-by-4- minute-video-even-though-I'm not-a-neurologist" Frist) GOP Congress would never breach principles of federalism and reach into family matters of life and death reserved to the states in any breathtakingly egregious manner, well, check with Michael Schiavo.

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