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Not Leaving It To The States

By Big Tent Democrat, Section Supreme Court
Posted on Wed Apr 18, 2007 at 11:06:11 AM EST
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Of special interest in today's SCOTUS decision upholding a late term abortion ban is that the mantra "leave abortion to the States" has been utterly abandoned by the Republican Party and anti-choice forces. This is a federal ban. This line from Justice Thomas' concurrence is ironic:

I also note that whether the Act constitutes a legitimate exercise of the Congress' Commerce Power is not before the Court.

For those of you who might have thought the conservative Justices were conceding the point.

< Kennedy: "Abortion Doctors" | Beware the Loner Myth and Profiling Efforts to ID School Schooters >

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    Not Leaving It To The States | 28 comments (28 topical)

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    perhaps (none / 0) (#1)
    by cpinva on Wed Apr 18, 2007 at 11:29:18 AM EST
    that issue should be before the court, to give justice thomas the opportunity to opine on that directly.

    Just like (none / 0) (#2)
    by Carolyn in Baltimore on Wed Apr 18, 2007 at 11:38:05 AM EST
    It is not too different from the 'leave marriage to the states' argument and then passing DOMA and then seeing a need for a constitutional amendment.

    States rights, right.

    It is ironic. (none / 0) (#3)
    by Gabriel Malor on Wed Apr 18, 2007 at 11:52:15 AM EST
    The post-New Deal Court opened the door to federal power run amok. Liberals decried the Lopez decision that tried to partially shut that door. Now you complain because conservatives decided to play your game? Irony.

    it doesn't matter what the complaint is ... (5.00 / 1) (#7)
    by Sailor on Wed Apr 18, 2007 at 12:36:56 PM EST
    ... all they can do is squawk "it's the dems fault!"
    e.g.
    The post-New Deal Court opened the door to federal power run amok.

    the repub platform is 'states rights',  'balanced budget', 'no welfare' and 'smaller gov't'.

    In actuality they are much more controlling and nanny/police state than dem, have expanded (corporate) welfare and national debt to record levels, and interfered constantly w/ states' rights.

    Hypocrisy, the real repub platform.

    Parent

    What is my game? (none / 0) (#5)
    by Big Tent Democrat on Wed Apr 18, 2007 at 12:11:32 PM EST
    I do not have a restricted view of federal power. THEY purport to.

    They are hypocrites. I am not.

    I do not object to the exercise of Commerce Power here. They SHOULD!

    Are you really this obtuse? No, you are being so deliberately.

    BAd show Gabriel.

    Parent

    Says you. (none / 0) (#6)
    by Gabriel Malor on Wed Apr 18, 2007 at 12:18:40 PM EST
    I do not object to the exercise of Commerce Power here. They SHOULD!

    Says you. Can you point to any cases where Roberts and Alito have narrowly construed the Commerce Clause? I know you can't get to Kennedy--he wrote the majority opinion in Lawrence.

    You would like them to have that opinion because then you would have the luxury of just yelling "hypocrite" instead of actually addressing the law of the case.

    Speaking of, I don't see any legal analysis here. No mention of the Casey and Stenberg precedents. No mention of the questionable use of facial attacks.

    Parent

    Thomas and Alito (none / 0) (#8)
    by Big Tent Democrat on Wed Apr 18, 2007 at 12:38:19 PM EST


    Parent
    And Scalia (none / 0) (#9)
    by Big Tent Democrat on Wed Apr 18, 2007 at 12:39:11 PM EST
    Roberts has been more circumspect I'll grant you.

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    Scalia Commerce Clause (none / 0) (#10)
    by Gabriel Malor on Wed Apr 18, 2007 at 12:50:36 PM EST
    Actually, Scalia agreed with Ginsburg, Kennedy, Souter, and Breyer and disagreed with O'Connor, Rehnquist, and Thomas in Gonzales v. Raich. He wrote an intensive examination of the Commerce Clause. Most relevant to this question, I think would be this:

    Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

    This is something which the dissent opposed, saying the Commerce Clause couldn't reach that type of activity. Scalia agreed with the libs. Now that Roberts and Alito have joined the Court, Thomas is the only old-school Commerce Clause guy hanging on.

    Parent

    Inconsistent with his previous opinion (none / 0) (#11)
    by Big Tent Democrat on Wed Apr 18, 2007 at 12:54:54 PM EST
    I'll look up my previous posts on the subject.

    Parent
    Lopez (none / 0) (#25)
    by Big Tent Democrat on Wed Apr 18, 2007 at 04:15:59 PM EST
    See the Randy BArnet link.

    Stop doing this Gabe.

    Parent

    Alito (none / 0) (#24)
    by Big Tent Democrat on Wed Apr 18, 2007 at 04:15:23 PM EST
    Rybar.

    Parent
    There's an underground railroad coming (none / 0) (#4)
    by glanton on Wed Apr 18, 2007 at 12:01:21 PM EST
    Slowly, but surely.  

    Leaving it to the states... (none / 0) (#12)
    by jarober on Wed Apr 18, 2007 at 12:56:25 PM EST
    Leaving it to the States would be better, because this kind of decision simply leaves a sucking wound open.  Pro-Choice advocates and Anti-Abortion advocates alike will fight this out by proxy, making each Supreme Court nomination a fight over issues like abortion.  I for one would rather have the vote taken by accountable legislators, so that the losing side would know that they had well and truly lost.  Having a 5-4 SCOTUS decision merely kicks the can down the road, and ensures that we'll keep having this entirely unproductive argument where the extreme believers on each side get more yell time.

    More Commerce Clause (none / 0) (#13)
    by Gabriel Malor on Wed Apr 18, 2007 at 01:15:38 PM EST
    Eugene Volokh thinks of something I hadn't with regard to the Commerce Clause and abortion:

    As Justice Thomas noted in his concurrence, the plaintiffs never raised the commerce clause issue. It is easy to understand why. If we are going to start actually obeying the commerce clause in regard to abortion restrictions, then, logically, the federal law against abortion clinic picketing (Freedom of Access to Clinic Entrances Act, "FACE") is also probably unconstitutional.
    Of course (none / 0) (#15)
    by Big Tent Democrat on Wed Apr 18, 2007 at 01:22:20 PM EST
    anynumber of things, including the Social Security Act are unconstitutional.

    Sophistry from Eugene Volokh.

    Parent

    Volokh (none / 0) (#17)
    by Gabriel Malor on Wed Apr 18, 2007 at 01:29:48 PM EST
    Yeah, yeah, we get it, you don't like Professor Volokh. But what do you say to his argument?

    You're the one who brought up the conservative abandonment of the Commerce Clause and called them hypocrites. But Justice Thomas is the only one who has consistently taken a narrow view of the Commerce Clause. The others have been willing to let Congress reach even the smallest intrastate commerce.

    So, what about his argument? He thinks that opponents of the Partial Birth Abortion Ban didn't bring a Commerce Clause challenge because it would lead to invalidation of the Freedom of Access to Clinic Entrances Act.

    If they had brought a Commerce challenge this may have been a 5-4 the other direction. But it would have opened the door to more Lopez- and Morrison-style challenges.

    Parent

    See Randy Barnett (none / 0) (#18)
    by Big Tent Democrat on Wed Apr 18, 2007 at 01:47:05 PM EST


    Parent
    It is not all hypocrisy from Conservatives (none / 0) (#16)
    by Big Tent Democrat on Wed Apr 18, 2007 at 01:23:48 PM EST
    generally on this issue. At least Randy?Barnet argues honestly on the issue.

    Parent
    Commerce Clause (none / 0) (#19)
    by 1980Ford on Wed Apr 18, 2007 at 01:58:37 PM EST
    There is litigation on the Commerce Clause in relation to the Adam Walsh Act. The Sex Crimes blog has detailed coverage (April 16, 2007 post).

    Will it set a precedent and spill over into the abortion litigation eventually?

    Sex offender registry (none / 0) (#20)
    by Gabriel Malor on Wed Apr 18, 2007 at 02:40:34 PM EST
    Well, there are a few ways to say that sex offenders come under Commerce Clause regulation. Either they are

    (1) themselves a channel of interstate commerce; [No.]
    (2) instrumentalities of interstate commerce, and persons or things in interstate commerce; [Yes.]
    (3) activities that "substantially affect" interstate commerce. [No.]

    The most likely disposition is that found in United States v Dinwiddie which i just coincidentally was looking at because it concerns the Freedom of Access to Clinic Entrances Act.  There, the district court held that FACE is within Congress's commerce power because the Commerce clause permits Congress to "protect.. . . persons or things in interstate commerce, even though the threat may come only from intrastate activities." The court held FACE is a valid exercise of Congress's power to protect people and businesses involved in interstate commerce.

    The analogy to sex offender registry is patent.

    Parent

    Minor correction (none / 0) (#21)
    by Gabriel Malor on Wed Apr 18, 2007 at 02:42:11 PM EST
    I wrote that this was a district court decision. That is incorrect. This is an 8th Circuit decision.

    Parent
    ad hominem attacks (none / 0) (#22)
    by diogenes on Wed Apr 18, 2007 at 03:54:23 PM EST
    What sort of argument against this ruling is it when those who favor it are accused of being "hypocrites"?  Accuse them of being wrong based on the law.

    Do you understand the Commerce Clause issues? (none / 0) (#23)
    by Big Tent Democrat on Wed Apr 18, 2007 at 04:14:40 PM EST
    Seriously, get some information first.

    Do you know who Randy Barnet is?

    Parent

    Watch it BTD ... (none / 0) (#26)
    by Sailor on Wed Apr 18, 2007 at 05:55:47 PM EST
    Diogenes is a mental health professional that believes solitary confinement and bread and cabbage diets are good for his mentally ill patients ...

    ... he might have you involuntarily committed for disagreeing with his 'truth.'

    Parent

    Heh (none / 0) (#27)
    by Big Tent Democrat on Wed Apr 18, 2007 at 06:01:57 PM EST
    I dunno about diogenes but I do know about the Commerce Clause issues here.

    And the Lopez case. And Rybar, and Raisch.

    I wish people who wnated to talk about it would at least do the basics on the subject.

    Parent

    like learning to spell.. (none / 0) (#28)
    by Patrick on Wed Apr 18, 2007 at 11:24:55 PM EST
    It's Raich, but I doubt Angel minds much.  

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    You think typos are the basics? (none / 0) (#29)
    by Big Tent Democrat on Thu Apr 19, 2007 at 09:05:11 AM EST
    How pathetic.

    Parent
    Not Leaving It To The States | 28 comments (28 topical)

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