Federalism

Justice Department Decides Not to Appeal Court Ruling Striking Down Federal Law Banning Female Genital Mutilation

The decision is likely to be unpopular. But it is the right thing to do nonetheless, as the law is unconstitutional. Not every evil must be addressed by a federal law.

|The Volokh Conspiracy |

On Friday, the Justice Department announced that it will not appeal a federal trial court decision ruling that the federal law banning female genital mutilation (FGM) is unconstitutional. This is likely to be an unpopular move. But it is right thing to do nonetheless. The federal FGM ban exceeds the scope of Congress' power under the Constitution. I summarized the reasons why in this post on the trial court decision:

Article I of the Constitution does not give Congress any general power to suppress crime or child abuse. Therefore, the federal government tried to shoehorn the FGM ban into the Commerce Clause, which gives Congress the power to regulate interstate commerce. On first principles, it is pretty obvious that, at least in most cases, FGM is not a form of interstate commerce. It is generally performed within one state and often isn't even a commercial transaction. However, misguided Supreme Court decisions have interpreted the Commerce Clause so broadly that they now allow Congress to regulate virtually any form of "economic activity," even if it is only performed within a single state, and even some forms of "noneconomic" activity, so long as banning it is part of a broader "regulatory scheme" aimed at an interstate market. But… the FGM ban does not fit even these broad criteria, and is also at odds with previous Supreme Court decisions, including United States v. Morrison (2000), which make it clear that the Commerce Clause does not give Congress the power to ban local violent crime…

If Congress does not have a general power to forbid violence against women or other violent crime—such as rape and murder—it also does not have the power to ban FGM. Like other crime, FGM, of course, has some effect on interstate commerce. But if the Commerce Clause gave Congress the power to forbid any activity that affects interstate commerce in some way, it would have the power to ban virtually anything, as almost any type of human behavior has some effect on what people buy, sell, or transport in interstate trade.

As Judge Bernard Friedman explained in the trial court decision:

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…. 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." [United States v.] Lopez, 514 U.S. at 561.

The federal government also claimed that the law is authorized by a combination of the treaty power and the Necessary and Proper Clause, as an exercise of Congress' authority to enforce US obligations under Article 3 of the International Covenant on Civil and Political Rights (ICCPR), which requires states to "to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant," and Article 24,  which states that "[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State." These are stronger arguments than the Commerce Clause theory. But they still fall short for reasons explained in Judge Friedman's opinion and in my earlier post on the case.

Female genital mutilation is a terrible crime. But that does not mean it has to be dealt with by the federal government. As Judge Friedman explains, FGM is already illegal in every state. It is either banned by targeted anti-FGM laws, or by general laws against child abuse and assault. Just as there is no need for a federal law against murder or assault, so there is no need for a federal anti-FGM law.

Some experts who agree that the anti-FGM law is unconstitutional nonetheless condemn the Justice Department's decision not to appeal, because they believe DOJ has a duty to defend the constitutionality of any federal law for which a plausible defense can be offered. I disagree for reasons outlined here and here. The Justice Department's highest legal duty is to defend the Constitution, not federal laws that violate it.

For what it is worth, I have maintained that view under both the Obama administration (with respect to its decision not to defend the Defense of Marriage Act) and the Trump administration (respecting its refusal to defend Obamacare). My objection to elements of the latter policy was due to the fact that DOJ's position was wrong on the merits, not the idea that the Department has a duty to defend the constitutionality of all federal laws that have a plausible legal rationale.

DOJ's decision on the FGM case is a welcome departure from the Trump Justice Department's generally awful record on constitutional federalism, lowlighted by its policies targeting "sanctuary cities," which have been ruled unconstitutional in numerous court decisions by both Democratic and Republican-appointed federal judges. The Trump administration also supports passage of the Protect and Serve Act, which would make it a federal crime to assault a police officer. The proposed act is unconstitutional for much the same reasons as the federal anti-FGM law. The Protect and Serve Act failed to pass last year, because it was bottled up in the Senate, but was recently reintroduced in the House of Representatives.

It is, therefore, a mistake to conclude that the Trump DOJ is a consistent champion of federalism. Very far from it. That said, Friday's decision may be the result of the influence of the Attorney General William Barr, who appears to be more supportive of federalism than his predecessor, Jeff Sessions. Being better than Sessions in this respect is, of course, a pretty low bar for Barr to exceed. But a small measure of progress is much better than nothing.

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68 responses to “Justice Department Decides Not to Appeal Court Ruling Striking Down Federal Law Banning Female Genital Mutilation

  1. It would, I think, be a different matter if the federal government was enforcing genital mutilation as a constitutional right – in such a case, the issue having already been federalized, then I would hope that it would at least be federalized in the *anti*-FGM direction.

    But since the FGM issue has not previously been federalized, we shouldn’t start now.

    1. The 14th Amendment grants Congress the power to enforce rights, but it doesn’t go the other way

  2. A reasonable alternate view is that the DOJ has the responsibility to preserve as much as possible of the federal law that does not offend the Constitution. So, for example, the federal government could criminalize paying someone for FGM. (That, clearly, is commerce, and under the current expansive view, reaches interstate commerce at least as much as does the production of, say, cocaine alkaloids or methamphetamines.

    1. How expansive is the view of interstate commerce?

    2. The fact that previous abuses of the definition of “interstate” have been tolerated does not mean that your or I or the DoJ have any obligation to support further abuses of that definition. If Congress wants a version of this law that does not offend the Constitution, it is their job to do it.

      1. You or I… true. The DOJ, however, belongs to the executive branch. They’re supposed to execute the laws, not pick and choose which ones they like.

        1. Prosecutorial discretion says they can.

          And while prosecutorial discretion has lots of potential for abuse, there are strong arguments that it’s necessary to prevent unjustly rigid application of laws to situations that the Legislature clearly did not anticipate.

          Of course, the better way to solve this would be to make the Legislature responsible for defending the constitutionality of their laws, not the Executive.

          1. “Prosecutorial discretion says they can.”

            Re-read the oath of office the President takes when sworn in.

            ” there are strong arguments that it’s necessary to prevent unjustly rigid application of laws to situations that the Legislature clearly did not anticipate.”

            That’s what the pardon power is for. Cases where the law was applied correctly, but that application was unjust.

            1. When pretty much every court everywhere disagrees with your interpretation, you might want to consider that maybe you’re wrong. Prosecutorial discretion has been challenged many, many times. About the only time the challenges win are when they can prove malicious or discriminatory intent. Mere choices about which laws to enforce have never been upheld.

              And, no, pardon power is not sufficient to resolve the problems of strict interpretation. Or do you really think the President should pardon everyone who drives two miles over the speed limit?

              1. “When pretty much every court everywhere disagrees with your interpretation, you might want to consider that maybe you’re wrong.”

                Wrong about what, specifically?

                “do you really think the President should pardon everyone who drives two miles over the speed limit?”

                No, for several reasons. First, and most basic, is the fact that speeding isn’t a federal offense, and therefore the President has no pardon power for speeders. Also significant, the pardon power is for cases where application of the law as written was done correctly, but the result is unjust. Your argument that getting a speeding ticket when you were speeding is somehow unjust because you were only speeding by a little bit is going to fall on deaf ears, and rightfully so. Now. If you were to have your brakes fail at the top of a long hill, and you safely avoid hitting anyone but get clocked over the speed limit on your way down, and get a ticket for speeding… that’s a case where application of the law, although factually correct, is unjust.

                1. Actually, involuntary acts are usually an exception to any law. If you could actually prove that your brakes failed and you COULDN’T slow down, you wouldn’t be convicted.

                  1. You’re trying to alter a hypothetical.

    3. What’s the difference between FGM and gender reassignment surgery?

      If FGM can be outlawed at least for minors so can gender reassignment.

      I’m happy leaving that power to the states.

      1. “What’s the difference between FGM and gender reassignment surgery?”

        Mostly? Whether or not the patient wants it done.

        1. A good bit of the classic research on the subject in North Africa suggests that young girls want(ed) the procedure, though it now looks like those attitudes have changed, especially in the U.S. I don’t think Kazinski is worried about FGM so much as sex reassignment surgery, which is, as far as I know, always performed on adults at their own request. There are numerous forms of elective surgery that Kazinski could have mentioned, so choosing sex reassignment surgery is telling.

          1. “research on the subject in North Africa suggests that young girls want(ed) the procedure”

            Which brings up the second part of the ethics… INFORMED consent.

            1. So people are only informed if they agree with you? If they disagree with you, they are brainwashed and therefore cannot disagree?

              1. You’re projecting more than a little bit, there, Ben.

            2. @James: As a physician I am well aware of the limitations of “informed” consent, but I suspect that the additional issue with FGM in the U.S. might be practicing medicine without a license — there was a physician in Michigan, as I remember, who was recently charged with performing FGM, but my understand is that this is usually done by someone who is not a physician — the line is sometimes fuzzy between what counts and what doesn’t count as practicing medicine.

              1. ” I suspect that the additional issue with FGM in the U.S. might be practicing medicine without a license”

                Alterations of male genitalia are also performed by persons with religious rather than medical training.

                I think I’ll stand on my previous position… people who are adults and choose to have their genitalia altered can go right ahead, but limits should be placed on adults who decide for other people, particularly other people who are not adults.

      2. “Watch with us as the concept of ‘consent’ continues to confuse and elude Modernicus Conservativicus…”

  3. If Congress does not have a general power to forbid violence against women or other violent crime – such as rape and murder – it also does not have the power to ban FGM.

    Someone please explain this to me, because it doesn’t make any sense.

    1. Why can’t Congress pass laws against crime?
    2. What about the “Violence Against Women Act” that’s been re-authorized several times??

    1. VAWA is unconstitutional (except as applied to D.C., the territorties, and the maritime jurisdiction.)

      1. It would also include national parks (where state law has no jurisdiction) military bases and any other federal facilities.

    2. Congress simply doesn’t have a general police power, so it can’t “pass laws against crime.”

      (Whatever THAT even means. Passing a law against crime?)

      1. >(Whatever THAT even means. Passing a law against crime?)

        It can be viewed generously as the idea that Congress can pass a law against a crime against Natural Law I guess.

        1. It could also mean that they could pass a law against a crime that already exists somewhere else.

    3. To understand why Congress does not have a generalized power to enact criminal laws you must first understand that the Constitution establishes a federal system, with authority distributed between the Federal government, the States, and the People. The Federal government was established as, and was intended to be, a government of limited and enumerated powers, exercising control over ONLY such areas as had a truly national impact – defense against foreign invaders, regulation of foreign and interstate commerce, relations between the states, authorizing patents and copyrights to protect intellectual property on a nationwide basis, uniform laws on bankruptcy, etc. General criminal laws, laws against murder, theft, assault, etc., were the proper province of the States, NOT the Federal government. Consequently, the Federal government can only enact criminal laws which either have a direct relationship to Federal territory – territories like Puerto Rico, Guam, American Samoa, the U.S. Virgin Islands, or military posts and national parks, OR which have a direct relationship to other Federal powers (i.e., postal laws and bank regulations).

      1. “The Federal government was established as, and was intended to be, a government of limited and enumerated powers, exercising control over ONLY such areas as had a truly national impact …”

        This is so old fashioned. How is Congress going to control the peasants if this sort of thinking takes hold?

    4. re: #1 – What DJDiverDan said.

      re: #2 – The Violence Against Women Act had several parts. It funded a bunch of programs “toward investigation and prosecution of violent crimes against women”, it imposed automatic and mandatory restitution on those convicted, it allowed civil redress in some cases, and it established the Office on Violence Against Women within the Department of Justice.

      Congress can fund pretty much anything they want without violating the Commerce Clause. That includes establishing new federal agencies. I wish they didn’t have such open-ended funding discretion but they do.

      The civil redress part is the only part that really counts as “passing a law against crime” and that was found unconstitutional in US v Morrison.

      Okay, maybe the restitution part is also “a law against crime”. To the extent it is, it’s on shaky ground. But as far as I know, it hasn’t been tested against a federalism claim yet.

  4. Serious question: If there is a strong case that a law is grossly unconstitutional for reason A, which the Court has, (Wrongly, in th opinion of the DOJ counsel.) rejected, and a lower court strikes it down on somewhat more dubious basis B, are they REALLY obliged to defend the conditionality of a law they still believe unconstitutional on the appeal?

    1. Maybe if they feel a law being struck down on “B” imperils some other law, whereas if it struck down on just “A” leaves other precedent intact.

      I think this is conceptually why the Obama admin defended the Bush admin’s regulatory change that allowed the concealed carry of guns in national parks. They were sued because, get this, proper environmental review wasn’t done on that decision according to anti-gun groups, as if it needed an environmental review for some occasional visitor to pack heat. The Obama admin defended their POWER to rulemake, rather than the change itself.

      1. One of the problems with guns isn’t that being perforated with lead causes death to wildlife, but the fact that having lots of lead in the environment poisons the wildlife even if the projectile misses said wildlife in its initial entry to the environment.

        So, yes, allowing carrying of firearms in a place does suggest that a review of the environmental impact of the change is warranted. In cases where hunting is contemplated, this could be a significant effort, resulting in regulation of what ammunition is OK to use.

        1. Actually, an awful lot of lead in ammunition has been phased out of use. Almost all (maybe all) shotgun ammo is now loaded with steel shot; it doesn’t have the mass of lead, and so it doesn’t have quite the same ballistic characteristics. It’s been a LONG time since last I went hunting, but steel shot was required for all waterfowl hunting along the Mississippi River and in Iowa and South Dakota, and I understand that most states now impose non-toxic shot requirements for most shotgun use. Lead is still widely used for rifle ammunition and for handgun rounds, but eliminating lead from shotgun ammo removes a lot of the lead pollution.

          1. “Actually, an awful lot of lead in ammunition has been phased out of use.”

            Actually, duh. Why do you suppose that is? (Hint: it’s the law.)

        2. They allowed carrying guns in national parks, they didn’t make using a gun in a national park legal, so any actual use is going to be rare and in an emergency situation. I can’t see any significant environmental impact from that.

          1. Is firing a gun the only way lead can get left behind? Or can ammunition be dumped or dropped or otherwise find its way into the environment?

            No, I don’t find it likely that this adds up to a significant problem, either… but rather than assuming the answer, some people like to check for themselves. It’s a valid concern.

  5. This isn’t a civil rights violation?

  6. *pulls up chair and bag of popcorn*

    How long till someone compares female genital mutilation to circumcision and said debate ensues?

    1. It’s already been done. The law in issue (18 USC 116(a)) doesn’t prohibit “mutilation” but various other acts with respect to female genitalia, including circumcision. And, of course, some people think that male circumcision should be illegal.

      1. ” some people think that male circumcision should be illegal.”

        Depends on whether or not you are talking about people who’ve chosen to have their body modified, or people who have not.

    2. I’ve long made this comparison. Female circumcision that isn’t very different in its physiological consequences from male circumcision -and something of the pinprick variety is that or less – should get treated the same constitutionally. Since under any semi-robust reading of the Free Exercise clause, male circumcision would be protected, so should female circumcision.

      Moreover, the emotional horror people feel about it isn’t that different from the emotional horror of sacrifice people had in Lukumi Bablo Aye.

      And equal protection works against it. The state can’t forbid female priests just because male priests are the more traditional practice and female priests a relatively new one. So why in the world should it be able to ban female circumcision while permitting male circumcision, just because male circumcision is a traditional practice that it’s used to, while female circumcision isn’t?

      1. Female circumcision that isn’t very different in its physiological consequences from male circumcision

        The World Health Organization begs to differ.

        1. There are several different degrees of female circumcision, from a pin prick to removal of the clitoris. A pin prick is certainly less life changing than removal of a male infant’s foreskin.

          Ritualized injury to genitalia of infants/children is all a bunch of religious clap-trap.

          1. Here we go with the “removing the foreskin is an injury” nonsense. Go ahead and tell me how I feel no pleasure and my reproductive ability is negatively impacted even though we’ve survived for 6,000 years and continue to grow no matter how many people kill us. Or tell the 1b+ Muslims that they literally can’t have children properly because they made a covenant with God.

            1. Assault is not improved by superstition.

              1. “Assault is not improved by superstition.”

                Arthur must own stock in a private prison company.

      2. FGM isn’t a religious practice unless you consider the cult formed by the pedophile warmonger to be a religion.

        1. The “not a real religion” exception to the First Amendment?

          If Muslims want to claim this as part of their religion, so be it, but I think the govt has a compelling interest here.

          1. Some people who happen to be Muslim claim it is a religious practice, but some other people who also happen to be Muslim say that it isn’t part of the religion, but rather a cultural practice.

            Anyone can say anything is part of their religious observance.

            1. It’s up to the individual what they believe, if they believe in this practice the government has a compelling interest in suppressing it which can’t be satisfied with less restrictive means.

              1. You also see this from time here in the states, with some alleged Christians saying that Jesus told them to hate gay people, and other alleged Christians insisting that Jesus never said any such thing.

                I find that pretty much whenever someone starts talking about what God wants, it turns out that what God wants is pretty much identical to what that person wants. God wants you to send me some money…

  7. I agree the law exceeds the commerce power. I also think that even if enacted by the state it would have Free Exercise problems. Circumcision, like sacrifice, has a long history as a religious practice. Female circumcision may be novel, as religious circumcision has historically been limited to males. But female priests are also novel historically.

    So long as a practice is mild enough that its physiological effects aren’t meaningfully different from male circumcision, it is an exercise of religion with no more compelling reason against it than religious practices the state has long tolerated. The fact that people find it abhorrent isn’t a sufficient reason to ban it. Indeed, under Lukumi Bablo Aye, it is a reason to protect it.

    1. The issue is, the practice often isn’t nearly as mild as male circumcision. Indeed, as opposed to just “nicking”, often it can be the entire exterior female genitalia and/or sewing the opening closed. A closer analogy would be just removing the first inch of the penis, or perhaps the entire thing.

      Likewise, the physiological effects can be major. These include bleeding, UTIs, epidermoid cysts, gangrene, and more.

    2. Countering that, of course, is the question of whether person A’s religious freedom extends to doing to person B.

      The state can certainly limit the “free exercise” of FGM to adults who choose if for themselves.

  8. That said, I think the Attorney General has a duty to defend acts of Congress. And because all my reasons for thinking the law unconstitutional are debatable, I think the duty applies here. The Supreme Court has struck down only a handful of laws on Commerce Clause grounds, and the outer limits are hardly crystal clear under its precedents. Similarly, the expansive reading of the religion clauses I favor is definitely debatable. Finally, one can debate my claim that where not much happens physiologically, there isn’t really much actual harm involved and people’s abhorrence of the practice is largely emotional. Indeed, I’m only arguing that banning it doesn’t pass heightened scrutiny (and that the religion clauses should require heightened scrutiny). It would pass rational basis.

    For these reasons, not defending it was a mistake and reflects the politicization of the Executive Branch. Congress’ power to override a veto is meaningless if the executive can nonetheless refuse to enforce a law, with complete impunity, whenever it doesn’t like it.

    1. I’d say that if the President refuses to enforce a statute of Congress, there should be some form of judicial review, perhaps even in a forum where the judges will give a presumption in favor of Congressional authority. In such a forum, if the judges deem the statute to be constitutional, they would have the power to remove the President from office for obstructing the statute, and even keep him from holding federal office thereafter.

      Perhaps the U. S. Senate, in proceedings initiated by the House, could be that tribunal. They’ll have an institutional interest in upholding a constitutionally valid law and removing a President who thwarts such a law. Maybe if they think the President acted in good faith, with a view toward having his actions reviewed in the Supreme Court, they might cut him a break, or if they think the law was unconstitutional they could likewise acquit, otherwise they would be able to kick the President out of office.

      1. The above is one possible interpretation of the Andrew Johnson impeachment. Assuming Johnson violated the Tenure of Office Act (there was some dispute), was this automatically impeachable, or if it was unconstitutional could he violate it, or could he in good faith set up a lawsuit to test his powers (as he said he did)?

        Even in a forum which was unsympathetic (a Republican Senate which had passed the challenged statute), Johnson didn’t get convicted. There were some real constitutional arguments against the statute.

  9. Article I of the Constitution does not give Congress any general power to provide medical care or regulate same. Therefore, the federal government tried to shoehorn the ACA into the Commerce Clause and taxing ability, which gives Congress the power to regulate interstate commerce and set taxes. On first principles, it is pretty obvious that, at least in most cases, medical care is not a form of interstate commerce. It is generally performed within one state and often is provided by non profit hospitals or with time and labor by medical professionals. However, misguided Supreme Court decisions have interpreted the Commerce Clause so broadly that they now allow Congress to regulate virtually any form of “economic activity,” even if it is only performed within a single state, and even some forms of “noneconomic” activity, so long as banning it is part of a broader “regulatory scheme” aimed at an interstate market.

    1. “Article I of the Constitution does not give Congress any general power to provide medical care”

      Yes, it does. Article I, Section 8, clause 1. It has a little bit of regulatory authority from interstate commerce clause (FDA is constitutional).

  10. So FGM is not a hate crime?
    And hate crimes are still legit?

  11. Are we going to have anywhere near the outcry to ban circumcision/MGM or do people largely not give a sh#t about anything that does not advance the ‘women are always the victims’ narrative?

    1. Ban MGM? But they made such good movies.

    2. MGM is code for Jewish and Islamic genocide.

  12. >FGM cannot, by any stretch of the imagination, be classified as an economic or commercial activity.

    Frankly, I’m surprised by that finding. I’ve always assumed there was at least a ‘customary donation’ to some religious group, if not an actual mohel-like job category.

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