The Volokh Conspiracy
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The decision, handed down today, is U.S. v. Nagarwala (E.D. Mich.); note that the decision did not consider any argument that there should be a religious exemption under the federal Religious Freedom Restoration Act for purely symbolic nicking or even minor excision that (as some have argued) doesn't cause any real harm and is much less intrusive than male circumcision. The court's decision was simply that Congress lacked the enumerated power to regulate this behavior at all, and that dealing with such behavior should be left to the states (as with other noncommercial intrastate misbehavior, for instance the violence against women discussed in U.S. v. Morrison, the case holding that parts of the Violence Against Women Act exceeded Congressional power).
Note also that similar arguments have been made against federal bans on certain kinds of abortion procedures, including by our own David Kopel and Prof. Glenn Reynolds (InstaPundit), in their Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 Conn. L. Rev. 59 (1997).
Here's the Conclusion of today's court decision:
Having reviewed § 116(a) with the greatest possible deference, the Court concludes that it is unconstitutional. Congress had no authority to pass this statute under either the Necessary and Proper Clause or the Commerce Clause.
The Necessary and Proper Clause does permit Congress to pass legislation to enforce treaty obligations, but there must be a rational relationship between the two. In the present case, there is no such relationship between the ICCPR and the FGM statute. Article 3 calls for "the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant," while Article 24 calls for protection of children without discrimination based on "race, colour, sex, language, religion, national or social origin, property or birth." Neither article is rationally related to the FGM statute, which prohibits the mutilation of girls' genitalia.
Even if it could be argued that the statute rationally seeks to implement a provision of the ICCPR, Congress may not enact such a statute because, as the Supreme Court has stated, the federal government has no "plenary police power," Lopez, 514 U.S. at 566, and "the clearest example of traditional state authority is the punishment of local criminal activity." Bond, 572 U.S. at 858. Federalism concerns demand that this division of authority between the federal and state governments be respected. No treaty—and no statute enacted to implement a treaty—may upset this balance.
Nor was enactment of the FGM statute a permissible exercise of congressional power under the Commerce Clause. That clause permits Congress to regulate activity that is commercial or economic in nature and that substantially affects interstate commerce either directly or as part of an interstate market that has such an effect. The government has not shown that either prong is met.
There is nothing commercial or economic about FGM. As despicable as this practice may be, it is essentially a criminal assault, just like the rape at issue in Morrison. Nor has the government shown that FGM itself has any effect on interstate commerce or that a market exists for FGM beyond the mothers of the nine victims alleged in the third superseding indictment. There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect, on interstate commerce. The present case cannot be distinguished from Lopez or Morrison. As in those cases, FGM is a crime that could be prosecuted under state law. FGM is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature.
As the Supreme Court has stated, "[a] criminal act committed wholly within a State 'cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.'" Bond, 572 U.S. at 854. For the reasons stated above, the Court concludes that Congress had no authority to enact 18 U.S.C. § 116(a) under either grant of power on which the government relies. Therefore, that statute is unconstitutional.
And here's part of the more detailed discussion of the Commerce Clause:
In deciding whether Congress has used its legislative power permissibly under the Commerce Clause, the cases instruct to first evaluate the economic nature of the regulated activity. In the present case, the government has failed to show that FGM is a commercial activity. It claims that "[l]ike child pornography and marijuana, an interstate market exists for FGM." Yet the government's only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states. This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government's attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing.
The government also contends that FGM is "an illegal form of healthcare," and since Congress can regulate healthcare, it can regulate FGM. In an effort to show that FGM is a form of healthcare, the government points to the fact that two of the defendants are physicians, that the procedure was performed at a medical clinic, and that Dr. Nagarwala "used commercially-sold medical tools and supplies," including Valium, a "schedule VI controlled substance, federally regulated as a commercial product." Id. at 38. The comparison of FGM to healthcare is unsuitable. FGM is a form of physical assault, not anything approaching a healthcare service. The cases the government cites in this section of its brief dealt with abortion services and healthcare generally, id. at 37, which bear no resemblance to the crime of mutilating girls' genitalia.
The government further asserts that "like the legislation at issue in Raich, Congress has enacted a comprehensive regulatory regime to eradicate FGM." The regulatory regime at issue in Raich is the Comprehensive Drug Abuse Prevention and Control Act and implementing regulations. This statute covers drug treatment (Title I), drug control and enforcement (Title II), and drug importation (Title III). Title II, which classifies a long list of drugs in one of five schedules, sets "strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping." There is no comparable "regulatory regime" for FGM, but simply a ban on the practice. In Raich, the Supreme Court noted that "[e]conomics refers to the production, distribution, and consumption of commodities," and found that the CSA "regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market." No such comparison can be made with FGM.
FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity. There is no suggestion that the procedure is done for money, aside from the unsupported comment made years ago by Senator Wellstone. Nor is there any suggestion that this "service" is offered within anything approaching an established interstate market, as exists for illegal drugs and pornography. Committing FGM is comparable to possessing a gun at school, i.e., a criminal act that "has nothing to do with commerce or any sort of economic enterprise." Lopez, 514 U.S. at 561. Nor can the Court distinguish FGM from gender-motivated crimes of violence, which the Supreme Court noted in Morrison "are not, in any sense of the phrase, economic activity." 529 U.S. at 613. Even assuming that FGM is a wide-spread practice within the United States (a fact the government has not established), it cannot be as wide-spread as violence against women. If, as the Supreme Court found in Morrison, rape and other forms of sexual assault against women are not economic or commercial activity, and therefore not part of an interstate market, no different conclusion can be reached concerning FGM, which is another form of gender- related violence.
The second factor the Court must consider is whether the statute contains "a jurisdictional element limiting the reach of the law to a discrete set of activities that has an explicit connection with, or effect on, interstate commerce." Norton, 298 F.3d at 555-56. There is no jurisdictional element in the FGM statute, which does not require any proof that the victims or the provider traveled in, or had any effect on, interstate commerce.
The cases indicate that the absence of a jurisdictional element is unimportant if there are sufficient congressional findings (third factor) or other evidence (fourth factor) of a substantial effect on interstate commerce. In the present case, however, there are no congressional findings other than the pro forma ones that accompanied passage of the statute. However, these are not findings as much as unsupported conclusions, and they do not begin to compare with the extensive findings made, for example, by both houses of Congress in Norton, Raich, and Perez. Nor are these the type of detailed, record-based findings that "would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye." Lopez, 514 U.S. at 563.
The Court next comes to the fourth factor, "the link between the regulated activity and interstate commerce," Norton, 298 F.3d at 556, i.e., whether there is a rational basis for finding that FGM has a substantial effect on interstate commerce. Here the government's argument amounts to this: there is a market for FGM, and even if defendants' activities have only a slight effect on that market, Congress can regulate it just as in Wickard, Raich, and Chambers. That is, the government seems to concede that it cannot show that defendants, by performing FGM and/or aiding and abetting and/or conspiring to do so, had a substantial effect on interstate commerce. But, the argument continues, because Congress can regulate the "market" for this service, it can also regulate defendants' activities in that market, regardless of how trivial their impact individually may be on the market as a whole.
For the reasons stated above, the Court rejects this argument. There is no evidence that FGM is a commercial activity, and there is no evidence that anyone beyond the mothers of the nine girls alleged in the third superseding indictment is in the market for this "service."
Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, "the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control." This argument fails for at least two reasons.
First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is "beyond the ability of any single State or local jurisdiction to control." Second, the government informs the Court that twenty-seven states have passed FGM statutes, and nothing prevents the others from doing so. Further, counsel for the government argued during the December 5, 2017, hearing on defendants' motion to dismiss one of the counts of the second superseding indictment that FGM is criminal sexual conduct because it involves unlawful touching and penetration. If that is correct, then FGM could already be prosecuted in every state under existing criminal sexual conduct statutes, to say nothing of battery or child abuse statutes. The government's suggestion that "those seeking the procedure [can] travel to refuge states where the practice is not prohibited" is simply false. No state offers refuge to those who harm children.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.