formulanone from Huntsville, United States, CC BY-SA 2.0, via Wikimedia Commons
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Featuring the Fabulous Dadbots: Mark M., Mark O., Dave S., Paul C., Dennis Curley, and Geoff Carter
Bots,
An additional political note on Roe -v- Wade if you can stomach it.
Our President Biker-in-chief has declared that he’s willing to support an exception to the Senate filibuster in order to push through federal law that would codify the right to an abortion across the entire nation.
My first response is: How do these exceptions work? You’re not arguing from a position of strength when you declare filibuster exceptions for individual specific laws. We want to blow up the filibuster for, what, privacy related issues? How do we define that? But…. I recognize this is a typical Democratic response—getting wrapped around the axle on a process issue. The Republicans wouldn’t care about such niceties. They would just do it.
The overriding filibuster blowup fear, of course, is that it could be quickly exploited to pass a nationwide BAN on abortion once the GOP gets a Senate majority. The possibilities are scary and don’t stop at abortion. Mandatory carrying of guns by elementary school teachers? Check. Banning of rainbow flags as well as actual rainbows? Check. Digging a 2000-mile moat filled with crocodiles at southern border? Check. Annexation of Greenland? Check. The list goes on, and all would be approved by the Kangaroo, er, Supreme Court.
The main argument in favor of Dems blowing up the filibuster is that Republicans will do it themselves the moment they achieve a Senate majority. This is the Golden Rule argument—do into others before they do unto you. Do it. Pass the laws you want and worry about the consequences later.
But the thing is, I don’t think that wily Mitch WANTS to either blow up the filibuster or to ban abortion nationwide. He wants to keep his Senators clearly on the “sane” side of the ledger. That’s why he supported the first, admittedly weak, gun reform law in decades. He wants his team to have SOMETHING to point to after Uvalde.
Mitch wants the focus clearly on immigration and inflation. Everything else is a distraction.
So, if Mitch really won’t nuke the filibuster, it’s probably a tactical error for Dems to do it. The progressives that are yammering for action (“Do Something!”) may just have to wait.
–Mark M.
I read some commentaries that shed additional light on this. Turns out that it really is not constitutional to either codify Roe or to enact a nationwide ban at the Federal level.
The Constitution permits (and requires) each state to create its own criminal code. The Federal government cannot tell a state what actions do or do not constitute a crime. Yes, there is a Federal criminal code, but it involves crimes with a national or interstate angle.
“ Federal criminal laws must be tied to some federal or national issue, such as interstate trafficking in contraband, federal tax fraud, mail fraud, or crimes committed on federal property. Some criminal acts are crimes only under federal law. But many criminal acts, such as bank robbery and kidnapping, are crimes under both federal and state law and may be prosecuted in either federal or state court.” — Criminal Defense Lawyer: NOLO.com
So, Wisconsin & Mississippi (to randomly choose two similar states) can outlaw abortion, while New York and Illinois can make it legal.
This is why Roe was so critical. By making abortion a Constitutional right, it effectively overrode those state level laws.
Firebreathers on the left call for Democrats to shoot first & ask questions later. Pass the damn Roe-codifying law and make the courts overrule it.
I would prefer that Dems address aspects of this that won’t be struck down. For example, push through a law that guarantees a woman’s right to travel out of state for an abortion. That is interstate commerce, clearly in Congress’ domain. I am pretty sure that the right to travel for medical care is already constitutionally protected. But a new law would give women another tool when they sue states trying to keep them from traveling or forcing pregnancy tests at the border.
–Mark M.
Informative stuff Mark. It’s a little reassuring that possibly it will be unconstitutional to codify a national abortion ban. But only a little. Who decides whether an activity has “a national or interstate angle”? Ultimately that would be the SCOTUS. I don’t put anything past this court. Hell, even a much more moderate court somehow reasoned that corporations have the rights of individual citizens. How crazy is that? Or take federal kidnapping or drug criminal laws. Unless these crimes are committed across state lines, they are acts of individual criminality which should be strictly the domain of the states. But yet a federal legislature passed laws with criminal codes for both, and the courts have upheld them.
I may be just a simple country lawyer, but this stuff seems like it won’t be so cut and dried.
MarkO
Hey Bots,
Interesting take about the interstate commerce clause; it has been used in the past to foment social change. In Katzenbach -v- McClung (1964), the SCOTUS ruled that a Birmingham restaurant could not segregate based on The Civil Rights Act of 1964, which specifically banned segregation in all businesses related in interstate commerce.
So, conversely, couldn’t an Interstate Abortion Act prohibit the denial of reproductive rights in the cases where it’s necessary to go across state lines to get the procedure done? Mark’s right, though; unless they start packing this court or take Clarence Thomas behind the woodshed, we’ll be going nowhere fast.
Later gators,
G