The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.