Even if this were passed - which I seriously doubt - I just don’t see how SCOTUS wouldn’t strike this down.
When Congress passes a law, it has to point to somewhere in the Constitution that gives it the authority to regulate in that area. Since the 40s though, this has been kind of a joke - Congress just points to the commerce clause and is able to pass whatever it wants. But, starting in the 90s, the conservative Supreme Court made it clear that it will not allow Congress to use the commerce clause to pass pro dem laws on culture war issues. This included issues surrounding guns near schools, violence against women act, and most recently with the Obamacare litigation, where the supreme court went out of its way to say that the individual mandate was not valid under the commerce clause (even though it was eventually held to be a valid law under congress’s authority to tax and spend).
So it seems that any commerce clause route toward passing a national abortion law would be doomed to fail, and it’s not clear what other route Congress could really take.
Of course, what this means we need to pack the court, but I doubt that’s what Biden meant.
There's a way Biden could get away with it without even going through congress: he drone strikes all the conservative justices and appoints progressive replacements. About equally likely, I think.
It'd be legal, too. The courts decided that murdering people for political reasons is a "political question" that the courts can't rule on when al-Alwaki's father tried to sue Obama to keep Obama from murdering his son.
Well the replacement justices would still have to be approved by the Senate. That said, supposing he drone striked all the conservative justices, I have my doubts that the Senate would fail to confirm his nominees.
I just don’t see how SCOTUS wouldn’t strike this down.
I agree. However, I'd argue that setting legislative precedent gives blue judges in red states an excuse to say "Oops! Law is changed! Now I'm going to disregard Dobbs in my ruling." And then we get another pitched battle at the appellate courts that takes years to resolve. And, in the meantime, people don't die over this shit.
So it seems that any commerce clause route toward passing a national abortion law would be doomed to fail, and it’s not clear what other route Congress could really take.
The Privileges and Immunities Clause (aka Comity Clause) leaps to mind. That, combined with the 14th amendment and the Supremacy Clause. The Feds wouldn't be compelling private firms to provide abortion services. They'd be forbidding state governments from regulating abortion services or prosecuting abortion as a crime.
Hell, a particularly bold federal judge could claim abortion is protected under the Comity Clause right now.
What's the comity clause argument? We didn't study this much in my 14A class, and from what I remember from the bar prep courses, it was just "States can't treat citizens of other States differently than they treat citizens of their own State." I'm not seeing the applicability here - but again, very possible I'm not knowledgeable about how it works.
Even if this were passed - which I seriously doubt - I just don’t see how SCOTUS wouldn’t strike this down.
When Congress passes a law, it has to point to somewhere in the Constitution that gives it the authority to regulate in that area. Since the 40s though, this has been kind of a joke - Congress just points to the commerce clause and is able to pass whatever it wants. But, starting in the 90s, the conservative Supreme Court made it clear that it will not allow Congress to use the commerce clause to pass pro dem laws on culture war issues. This included issues surrounding guns near schools, violence against women act, and most recently with the Obamacare litigation, where the supreme court went out of its way to say that the individual mandate was not valid under the commerce clause (even though it was eventually held to be a valid law under congress’s authority to tax and spend).
So it seems that any commerce clause route toward passing a national abortion law would be doomed to fail, and it’s not clear what other route Congress could really take.
Of course, what this means we need to pack the court, but I doubt that’s what Biden meant.
There's a way Biden could get away with it without even going through congress: he drone strikes all the conservative justices and appoints progressive replacements. About equally likely, I think.
It'd be legal, too. The courts decided that murdering people for political reasons is a "political question" that the courts can't rule on when al-Alwaki's father tried to sue Obama to keep Obama from murdering his son.
:us-foreign-policy:
Thomas is black and I'm like 98% certain that photos of Kavanaugh in blackface will emerge at some point.
Well the replacement justices would still have to be approved by the Senate. That said, supposing he drone striked all the conservative justices, I have my doubts that the Senate would fail to confirm his nominees.
In the meantime, liberals would have the majority.
Biden Crossing the Rubicon
:sicko-wholesome:
He wouldn't even need to involve the military, just get the Sergeants at Arms to pick up the House Mace and do their fucking jobs
Bust open some skulls on the floor of congress just like yhe founders intended
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I agree. However, I'd argue that setting legislative precedent gives blue judges in red states an excuse to say "Oops! Law is changed! Now I'm going to disregard Dobbs in my ruling." And then we get another pitched battle at the appellate courts that takes years to resolve. And, in the meantime, people don't die over this shit.
The Privileges and Immunities Clause (aka Comity Clause) leaps to mind. That, combined with the 14th amendment and the Supremacy Clause. The Feds wouldn't be compelling private firms to provide abortion services. They'd be forbidding state governments from regulating abortion services or prosecuting abortion as a crime.
Hell, a particularly bold federal judge could claim abortion is protected under the Comity Clause right now.
What's the comity clause argument? We didn't study this much in my 14A class, and from what I remember from the bar prep courses, it was just "States can't treat citizens of other States differently than they treat citizens of their own State." I'm not seeing the applicability here - but again, very possible I'm not knowledgeable about how it works.