Separation of Powers

Can the House of Representatives Continue a Prosecution That the Executive Branch Has Decided to Drop?

An interesting separation of powers question coming in the Female Genital Mutilation statute / Commerce Clause / Religious Freedom Restoration Act / Dawoodi Bohra litigation.

|The Volokh Conspiracy |

The Dawoodi Bohra are a Shia Muslim sect; many of its members believe that, among other things, boys and girls must be circumcised. The federal government charged some Dawoodi Bohra under the federal ban on female genital mutilation; one of the defendants' main defenses is that they engaged only in symbolic nicking or scraping that left no lasting damage to the girls, and that they should therefore be exempted under the Federal Religious Freedom Restoration Act from the federal statute.

But this defense hasn't yet been explored by the court, because the court instead held that the federal female genital mutilation ban exceeds the federal government's enumerated powers; if such a practice is to be restricted (with or without a religious exemption for relatively harmless symbolic action), it must be done by the states, or through a federal statute that contains a suitable basis for federal jurisdiction (such as travel across state boundaries). The court therefore dismissed most of the charges in the federal indictment The Justice Department initially filed a notice of appeal, but, then dropped the appeal:

On further examination, the Department reluctantly agreed with [the court's] determination, provided notice to Congress under 28 U.S.C. § 530D that it would not challenge the district court's ruling, and proposed a statutory amendment that the Department urged Congress to enact.

When the Justice Department's plans were announced, the House of Representatives intervened to defend the constitutionality of the statute, and Friday the Justice Department filed its opposition. Much of the debate has to do with whether the House generally has the statutory authority to intervene to defend federal statutes that the Justice Department has chosen not to defend. But a key part specifically has to do with whether the House can try to reinstate a federal prosecution that the federal prosecutors have chosen to drop:

Let us be clear at the outset what power the House of Representatives asserts: the House claims that it is entitled to keep alive a criminal prosecution that the Executive Branch no longer wishes to pursue on appeal. Never before has either House of Congress attempted, or any court authorized, such an exercise of core executive power. Article II vests executive power in the President, U.S. Const. Art. II, § 1, cl. 1, and requires that he "take Care that the Laws be faithfully executed," id. § 3. Under our separation of powers, Congress—let alone a single House—cannot intervene and assume control of litigation, simply because it disagrees with the manner in which the Executive has chosen to execute the laws.

I find this separation-of-powers analysis—which I quote in much more detail below—pretty persuasive, though perhaps the House's reply may bring me around. (The House's original motion only talked about the statutory question, as it was entitled to do; now that the Justice Department has brought up the constitutional question, the reply brief is the right place for the House to respond to it.)

I generally sympathize with the view that, when the Justice Department or a state Attorney General declines to defend a federal or state statute in court, there ought to be some means for someone else to defend the legislative will (or, for an initiative, the popular will). In some situations, that might well be possible: For instance, if I sue in federal court to challenge a state statute, and the state decides to concede the statute's unconstitutionality, the case remains in court and the judge still has a legal decision to make: It might make sense for legislators, for instance, to file an amicus brief urging the court to reject my challenge, even though the state and I agree. The state has no unilateral power to enter a judgment in my favor; that is up to the court.

But I think the federal Justice Department does, under federal separation of powers principles, have the unilateral power to choose not to seek an indictment. It likewise, I think, have the power to choose not to try to reinstate an indictment that a district court has dismissed.

I don't think the matter is open and shut, and there's been some debate about the degree to which the federal government's ability to stop prosecuting a case, by dismissing charges, can be constrained; Federal Rule of Criminal Procedure 48(a) allows such dismissals only "by leave of court," but courts have concluded that this judicial supervision must be quite limited, precisely because of the separation of powers:

[U]nder our system of separation of powers, the decision whether to prosecute, and the decision as to the charge to be filed, rests in the discretion of the Attorney General or his delegates, the United States Attorneys.

Still, on balance it seems to me that Congress—and certainly one branch of Congress—cannot step in to try to reinstate a federal prosecution. To quote a Seventh Circuit decision in favor of a prosecutor's power to drop charges,

The government wants to dismiss the civil rights count with prejudice, and that is what Bitsky wants as well. The district judge simply disagrees with the Justice Department's exercise of prosecutorial discretion. As he explained in his response to the petition for mandamus, he thinks the government has exaggerated the risk of losing at trial: "the evidence was strong and conviction extremely likely." The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person.

Here is more from the Justice Department's argument:

Here, the Department of Justice initially pursued a prosecution of eight defendants involved in female genital mutilation, because it views that practice as heinous and reprehensible. The district court, however, dismissed the female-genital- mutilation charges as unconstitutional on the ground that the relevant statute, 18 U.S.C. § 116(a)—which was passed in 1996, before the Supreme Court's decision in United States v. Morrison, 529 U.S. 598 (2000)—lacks any jurisdictional hook to interstate commerce. On further examination, the Department reluctantly agreed with that determination, provided notice to Congress under 28 U.S.C. § 530D that it would not challenge the district court's ruling, and proposed a statutory amendment that the Department urged Congress to enact. That is precisely how the Branches should interact in a system that separates legislative from executive power.

At that point, the House (and Senate) were free to make simple amendments to the statute that would cure the constitutional defect and permit future federal prosecution of those who commit female genital mutilation. Given the broad condemnation of this abhorrent practice, it is inexplicable that the House has not acted on the Department's proposal.

Instead, the House has chosen to try the one thing it plainly may not do: step into the shoes of the Executive, assume control of this criminal prosecution, and litigate on behalf of the United States. The Constitution entrusts that responsibility to the Executive alone.  If the defendants in this case are to go to prison, it should not be at the behest of three members of the House's Bipartisan Legal Advisory Group. [Footnote: The Bipartisan Legal Advisory Group consists of five members: the Speaker of the House, the Majority and Minority Leaders, and the Majority and Minority Whips. Here, the Speaker, Majority Leader, and Majority Whip voted in favor of seeking intervention; the [Minority] Leader and Minority Whip voted against it.]  This Court should therefore deny the House's motion for intervention, which would end this appeal and would leave the question where the Constitution places it: whether the House wishes to exercise its legislative power and amend this statute….

The Constitution vests the prosecutorial power of the United States in the Executive Branch.  See U.S. Const. art. II, §§ 1, 3.  Accordingly, the "Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." United States v. Nixon, 418 U.S. 683, 693 (1974). The House's intervention motion attempts to carve out a role for the Legislative Branch from that constitutionally guarded prosecutorial power. No court has ever permitted the Legislative Branch to do what the House requests here—extend a federal criminal prosecution that the United States has determined no longer to pursue on appeal— and its request is unsound….

The proper role of the House in ensuring the viability of future prosecutions for female genital mutilation is its participation in the bicameralism and presentment process for enacting new laws. The Department has proposed legislation that would amend Section 116(a) to require proof of a nexus to interstate commerce, thereby eliminating the constitutional concerns that the district court identified. Congress should expeditiously adopt that proposal. But the House cannot instead take the reins of a criminal prosecution….

The House acknowledges that, because this case involves a federal criminal prosecution, it "is highly unusual" even among the rare cases addressing legislative intervention. Indeed, the United States is not aware of any court that has ever permitted anyone to intervene to defend the constitutionality of a federal criminal statute. Cf. Sanger v. Reno, 966 F. Supp. 151, 166 (E.D.N.Y. 1997) (declining to add House Members as defendants in suit challenging constitutionality of criminal prohibition, in part because criminal prosecutions are "entirely in the hands of the executive branch"). No law or rule expressly allows intervention in criminal cases, and courts have permitted intervention only to protect third-party interests distinct from the prosecution itself. Any such extratextual intervention authority cannot encompass the House's efforts to continue this criminal prosecution….

Although styled as a motion to intervene, the House's motion in effect seeks to substitute the House as the appellant, challenging an order dismissing criminal charges that the United States has determined not to appeal.  But it is a "well settled" rule "that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment." "A 'party' to litigation is 'one by or against whom a lawsuit is brought.' " The only parties to a federal criminal prosecution are the defendant (the person "against whom" charges are brought) and the United States (the entity bringing the charges). And only "the United States" may appeal an order dismissing charges in a federal indictment.

The House does not contend, nor could it, that it represents the United States in this case. The Constitution vests the prosecutorial power in the Executive Branch, not the Legislative Branch. See U.S. Const. art. II, § 3 (duty to "take Care that the Laws be faithfully executed"); United States v. Armstrong, 517 U.S. 456, 467 (1996) (calling the "power to prosecute" "one of the core powers of the Executive Branch"). Just as no history exists of "any private prosecution of federal crimes" in the United States, Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 n.2 (1987) (Scalia, J., concurring in the judgment), no history exists of any congressional prosecution of federal crimes.

To the contrary, "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." Nixon, 418 U.S. at 693. Allowing a legislative entity to do so would permit the "legislative usurpation[]" of executive power, which in the Framers' view, "the people ought to indulge all their jealousy and exhaust all their precautions" to prevent. Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273 (1991) (quoting The Federalist No. 48, at 333 (Madison) (J. Cooke ed. 1961)). The House therefore lacks any authority to maintain this appeal on either the United States's behalf or its own….



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  1. Old-timey superstition does not excuse child abuse. Ever.

    At least, not among reasoning, competent adults.

    The snapback against limitless special privilege for (certain) religious claimants — a recent push used mostly to defend bigotry and other noxious things — seems predictable and likely to be fierce.

    Thank goodness for American progress.

    1. Get an education. Specifically, one that covers the difference between enumerated powers and religious freedom…

      1. Nothing in our Constitution authorizes or condones child abuse consequent to religion. The better course might be a state prosecution, but child abuse does not become more palatable or lawful when wrapped in superstition.

        The likely future in America — part of the progress that continues to make our nation great — involves no circumcision of a child, male or female, that is not medically indicated. People are entitled to believe as they wish, but mutilating a child should be a felony with a severe penalty.

        1. Education failed.

          1. Crushing the preferences of guys like you might be the best part of winning this culture war.

            Carry on, clingers . . . so long as you toe the line your betters have established.

            1. In its present posture, the case is about federal versus state jurisdiction, and the powers of the House of Representatives in criminal prosecutions.

              Poor Kirkland, however, is so triggered by the reference to religion that he missed the point.

              1. Yep

              2. I dislike child abuse. Intensely.

                I also dislike child abusers and their appeasers.

                You guys are welcome to disagree with my preferences.

                1. Then Congress should get to work invoking its powers under the Child Abuse Clause of the Constitution.

                  1. Or perhaps Congress should refrain from trying to appease child abusers to flatter childish superstition?

                2. Yep, because the child abuse didn’t take place in a state that could lawfully prosecute the abusers. Oh wait, it did.

    2. But of course, mere abstract dislike of something is not a legitimate federal interest. Legitimate federal interests are based on enumerated federal powers.

    3. Yet RAK fully supports partial and post birth killing of a child.

      Can you say ironic?

      1. If you have information concerning the killing of a child, the sole responsible course for a decent, competent adult would be to alert the relevant law enforcement authority.

        If you do not have information concerning the killing of a child, the sole responsible course for a decent, competent adult would be to stop spouting gibberish while others are attempting to conduct reasoned debate concerning public affairs.

        Carry on, clingers.

    4. Then perhaps it would behoove the liberal-libertarian majority in the House to introduce legislation that would correct the constitutional infirmity with the current statute?

  2. What does the fact that this a criminal case add to the analysis, apart from some emotional emphasis? Jeopardy did not attach (the trial did not start, and the case was dismissed on legal grounds). So how is this different from a civil case?

    (I agree that the separation of powers issue is a serious one, but I fail to see how the criminal aspect has anything to do with it.)

    1. The power to decide whether to criminally prosecute someone in federal court for violating federal law is usually seen as an exclusively Executive Branch power (perhaps with a narrow exceptions for contempt prosecutions). You and I can’t do it; the House of Representatives generally can’t do it; there’s a good argument that independent agencies can’t do it (even the special prosecutor in Morrison v. Olson was seen by the Court as being sufficiently under the control of the Executive Branch). The Justice Department’s brief cites some of the key cases stressing that this is indeed so, e.g., “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

      Civil lawsuits for violation of federal law, on the other hand, are of course routinely brought by private entities, as well as by purely independent federal agencies, state governments, and even foreign governments. One can certainly argue that the House of Representatives nonetheless lacks standing to litigate even civil lawsuits on behalf of the U.S.; but the matter is less clear, I think, than as to criminal prosecutions.

  3. This looks like a way Democrats, looking down the road, would use as a precedent to get at Trump (and/or his family, aides, etc.) in the event no prosecutions are brought or they are defeated at trial, etc. Too cowardly to use the procedures given in the Constitution (i.e., impeachment) they make up sh*t as they go along.
    They ought to keep in mind the history of “changing the rules to make up for elections they lost”. A signal example being the amendment limiting presidents to 2 terms (or 10 years) – which Republicans pushed through during the Truman years in retribution for FDR winning 4 terms. Every time since, when a two-term Republican president was nearing the end of his term (Ike, Reagan, some Bush 43), there was an undercurrent of “gee, we could do pretty well with him for another term” among Republicans.
    In other words, be careful what you wish for and what you enact, for it will be used against you.

    1. I dunno. Your fears sounds a bit delusional and paranoid to me. Not everything is part of a plot to destroy Trump. I’m filing this under, “All I have is a hammer, so everything looks like a nail to me.”

  4. Maybe I’m missing something, but the House doesn’t purport to “continue a prosecution” here, right? They’re just trying to reverse the judgment granting the motion to dismiss the FGM counts on constitutional grounds. I don’t see any problem with that or how that would possibly trample on separation of powers. The most the House can accomplish is reversing the judgment, but even supposing they succeed, at that point they won’t be “continuing the prosecution”; instead, they’ll be out of the picture completely. Then it’s up to the DOJ how to proceed. Even with a new lease on life for the FGM counts, the DOJ could still decide it wants to dismiss them, right?

    1. They’re trying to reinstate criminal charges that the federal prosecutors don’t want to see reinstated. That, it seems to me, is the House trying to continue the prosecution. True, the House wouldn’t have its lawyers in trial court putting on evidence before the jury (or even litigating legal issues before the trial judge). But right now there are no federal criminal charges under the FGM statute pending against Jumana Nagarwala and the other defendants. If the House gets its way, is allowed to intervene in the appeal, and wins, there will be such federal criminal charges pending.

      1. If the feds don’t want the charges reinstated, they could drop them after they are reinstated. That would not prevent a future executive with a different view from prosecuting this case, or similar acts by the same defendants in the future.

        1. ” That would not prevent a future executive with a different view from prosecuting this case, or similar acts by the same defendants in the future.”

          The district court opinion affects no other district. 10 years from now, a different administration can charge someone under the statute in a different district and litigate it all they want.

          1. It doesn’t even affect other cases in the same district. Technically it doesn’t even preclude a prosecution of different defendants in a case assigned to the same judge (although obviously the government would probably face an uphill battle in that circumstance).

          2. “The district court opinion affects no other district. 10 years from now, a different administration can charge someone under the statute in a different district and litigate it all they want.”

            Indeed. That’s why I said, and you quoted me saying, “prosecuting this case, or similar acts by the same defendants in the future.”

  5. As long as the aconstitutional doctrine promulgated by the Federal courts over the last fifty years that the power of prosecution is an executive power remains in place, this is true.

    But the correct analysis is that prosecution is not part of the “executive power”, but rather that prosecution is one of the powers of the people, as firmly established by centuries of common law, and accordingly entrenched in the constitutional order by the Ninth Amendment. Any citizen that wishes to go before a grand jury and seek an indictment on behalf of the United States has the right to do so; that the court will not currently vindicate his right is an injustice that needs to be undone.

  6. Prosecutorial discretion is one thing. Dropping the case with prejudice is another. If the case is dropped, it should be dropped without prejudice, assuming that is an option for the government.

    Dropping the case with prejudice is the functional equivalent of a pardon, since it prevents not only the current prosecutor, but future prosecutors from acting. This is different than a plea deal, where the government extracts some concession from the defendant. If the executive branch is going to exercise its pardon power, it should have to do so through proper channels (i.e. by taking accountability for the decision and at a Presidential level).

    1. I don’t think the case has been dropped with prejudice. The relevant counts of the indictment have been dismissed, but my sense is that the defendants can be reindicted (assuming the statute of limitations hasn’t yet run), whether for other crimes or for the same crime.

      1. If charges get dismissed on constitutional grounds, they can just re-indict you and re-litigate? IANAL, but I would have thought that there was some sorta res-judicata type thing that would prevent this.

        1. There’s a SCOTUS case from 1916 that said that res judicada applied to a defended who’s case was found to be barred by the statute of limitations. Would this be any different? IIUC, if the feds drop the appeal, the dismissal of the indictment on constitutional grounds would be a final judgement on the merits.

          “A judgment for defendant that the prosecution is barred by limitations goes to his liability in substantive law, and, in whatever form the issue was raised, such a judgment may be interposed as a conclusive bar to another prosecution for the same offence.

          The Fifth Amendment, in providing that no one should be twice put in jeopardy, was not intended to supplant the fundamental principle of res judicata in criminal cases.”

        2. I think it might depend on whether “constitutional grounds” is unrelated to “factual guilt or innocence” and the constitutional ruling did not establish a lack of “criminal culpability”. See Scott 437 US 82.

          1. That’s a double jeopardy case. The statute of limitations case I cited above didn’t involve a determination of factual guilt or innocence either.

            I agree that the government can try the guy if they successfully appeal. But if they drop the appeal and take the L, it doesn’t seem like the can re-indict him and re-litigate the issue, due to res judicata.

            1. “The statute of limitations case I cited above didn’t involve a determination of factual guilt or innocence either.”

              That’s the point. Scott impliedly overrules Oppenheimer. Scott narrows the circumstances in which the government cannot re-litigate the issue. There, they could re-litigate the issue because the defendant won on grounds other than his factual guilt/innocence and criminal culpability. I don’t know what the Court would say re: SOL for those things. And I don’t know what the Court would say today re: federalism jurisdiction for those things. But unless Scott has been reversed, that would be the analysis.

              1. Well, you’re the guy with the law degree, but none of my googling suggests that Oppenheimer is not good law. Scott doesn’t even mention Oppenheimer.

                The issues are different, Scott deals with when the government can appeal after jeopardy has attached, but Oppenheimer deals with when the government can re-indict after it loses a final judgement.

                1. There’s a D. Conn. case discussing the interplay between Scott and Oppenheimer. The court held that acquittal on limitations grounds did not bar retrial. Cited both cases and stated “To the extent [Oppenheimer] would bar further prosecution in this case, it is inconsistent with Scott.”

                  Case is Kruelski v. State of Conn. 156 F. Supp. 2d 185.

                  1. Let me be clear that I don’t think the answer is clear. That’s why my initial comment was very qualified (“I think it might…”).

                    1. Fair enough, and I’m not necessarily saying that you’re wrong. But Oppenheimer seems pretty square with our hypo: The government re-indicts to re-litigate a question of law that it lost the first time. That seems like a straightforward application of res judicata. Smith and your CT case involve the government successfully appealing an adverse ruling. I agree that the government could appeal this ruling if it chose to do so. But it doesn’t seem like they could re-indict and re-litigate the issue if they choose to drop the appeal.

                    2. @Twelve,

                      I agree that the government’s decision not to appeal should be determinative, but on standing ground, since there can be no controversy if the government no longer has a disagreement with the accused.

  7. Not the issue here, but isn’t the appeal of the decision very unlikely to succeed? Much as I abhor FGM, I find it hard to argue with the court’s view that the matter falls outside federal jurisdiction.

    1. Even if the appeal doesn’t succeed, if a single House of Congress can prosecute criminal cases, what does that do to the law?

    2. Yes, but you weren’t nominated by a federal President, and confirmed by a federal Senate. Having a normal, sane level of skepticism about the reach of federal jurisdiction is an informal disqualification for appointment to the federal judiciary.

      1. Seems like an odd point to make in the context of this case, where the presidentially-nominated/senate-confirmed officials (the district court judge and the assistant attorney general) are the ones who believe the statute exceeds confessional authority.

  8. If the Executive doesn’t want to prosecute, and we can assume the accused doesn’t want to be prosecuted, Article III standing should be dead. How can there be a “controversy” when the Executive and the accused agree on the outcome?

    1. Federal criminal prosecutions are brought in the name of the United States. The issue is, who is empowered to represent the United States. Whoever it is, there is Article III standing, because the Unitd States has standing to complain about violations of its laws.

      1. There may be an aggrieved party, but as Scalia pointed out in his Windsor dissent, there can be no controversy when the government and its opponent agree on the outcome. There is no constitutional infirmity; the only person who had alleged a constitutional injury was the defendant. The defendant has not been harmed. There no longer is any controversy to resolve. It may well be the case that BLAg and the Justice Department disagree as to permissible federal powers, but BLAG is free to write about it separately. The Judiciary is not free to wade into disputes in the absence of a case and controversy.

        This was all but conceded in BLAG’s motion to intervene. They admitted that all they wanted to do was secure an appellate decision affirming the constitutionality of 18 USC 116, but that this would not, by itself, compel the Justice Department to do anything. That means BLAG is asking for an impermissible advisory opinion from the COA. The Judiciary has “neither any work to do nor any power to do it” in this dispute.” US v. Windsor (Scalia dissenting).

    2. Because aside from the prosecution itself, there is the question of whether or not the underlying law is constitutional.

      The House, in this case, isn’t overly concerned with this individual prosecution. They’re interested in the law’s constitutionality.

      1. But the House doesn’t get to just ask the judiciary “Hey man is this statute unconstitutional?” There has to be a case, and a controversy between the parties to the case. Here, the US Government agrees with the defendant about the law’s unconstitutionality. What more is there to argue about?

        1. Here, the US Government agrees with the defendant about the law’s unconstitutionality. What more is there to argue about?

          Correction: here part of the US Government agrees with the defendant.

          I’m not arguing it’d be weird to go forward without any real defendant. But it being weird to continue without one doesn’t mean that the executive branch should be able to unilaterally kill a law.

  9. If the House leadership were serious about this, it would be much simpler just to pass a Bill of Attainder. That’s the traditional way for a legislature to prosecute.

    1. Was this an attempt at humor or did you not know the Constitution expressly bans Bills of Attainder at all levels of government?

      1. That’s the point. One could argue the Bill of Attainder clause expressly prohibits Congressionally-initiated prosecutions even if the main body of the Constitution’s separation of powers somehow doesn’t completely foreclose the issue.

  10. This is an…odd case…for the Democrats to pull this on.

    Female genital mutilation (FGM) is wrong. That being said, the three states represented in this particular case have laws against FGM. These cases can be prosecuted on the state level, just like many other very bad cases…murder, rape, etc… are. We have divisions between state and federal power, and the DOJ recognizes this.

    We also have a division of power between the US Branches of government. Congress makes the laws, the executive enforces them, and the Judicial branch interprets them. For Congress to suddenly step in and take over prosecution of a criminal case…not even Congress, but the majority in one House… is odd and strange. Suddenly there are three sets of prosecutors, not one?

    What are the implications here, if Congress has this power? Can they choose to prosecute criminal laws against anyone they wish? With just a single House? Can a majority in Senate suddenly decide they’re going to prosecute DACA people?

    1. Go read Gamble v US, argued at the Supreme Court in December. It’s about the idea that the People aren’t sovereign in the US, but rather that the State and Federal governments are independent sovereigns with concurrent jurisdiction (in many places, exclusive in some). One of the major angles Gorsuch was pushing is that usually federalism divides power (feds get some, states get other) while in this case the governments position is that federalism multiplies power. That case is specifically about double jeopardy, but the underlying principle is the same in both.

      1. I’m fully on board with the separate sovereigns doctrine, as well as overlap between federal and state powers. The initial point I was trying to make was that:

        1. The district court was correct, in that with the particulars of this case, the federal FGM law was unconstitutional, as it unconstitutionally extended its police and prosecution power into a domain that was held by the states.
        2. Existing state law was sufficient for the prosecution of the crimes.

    2. Assuming the defense is telling the truth, there appears to be a problem of imprecise definitions here. Male circumcision as practiced in the Jewish tradition and as a secular operation in the USA merely removes a tiny patch of skin. If done right, it does not interfere with sexual function or pleasure. There’s no good reason for it other than religion (the original reason was to permanently identify a boy as a Jew), but also no good reason for taking this decision away from the parents, and definitely not enough reason to interfere with religion.

      FGM as it is allegedly often practiced in North Africa and the Middle East is the removal of part of or all of the clitoris and surrounding tissue. It’s male equivalent is not circumcision but penile castration. It’s advocates _intend_ to prevent sexual pleasure, and if “done right” it will do this and interfere with sexual function. This is not something parents should be able to choose for their child, and it’s serious enough for a general regulation against it to overcome religious freedom.

      But the claim is that the “FGM” in this case is just a tiny symbolic abrasion, with no significant permanent effect – less than circumcision.

      1. If that is true, and if this is banned by the law in question, Congress made the law far too broad. If that was the only problem with the law, I expect that eventually the Supreme Court would limit the law’s effect. (They won’t do real justice – taking all legal costs out of the salaries of the idiots that wrote the law, suggesting that any of them that are lawyers should have their licenses pulled for either incompetence or disrespect for our fundamental laws, overturning the law, and leaving Congress to pass a new law that precisely defines “FGM” if they want a law at all.)

        BUT this is not the legal issue here, or not the first legal issue. The issue is that FGM is not a federal issue at all, so Congress does not have any power to regulate it, any more than it has the power to pass a law against murder within state jurisdiction. Regulating FGM is a state issue.

        Did Congress give some bogus reason for it to be part of regulating interstate commerce, or did the idiots entirely forget that federal jurisdiction is limited?

  11. Whats the difference between female genital ‘mutilation’ in this case and circumcision in males that nobody seems to care about other than the circumcision being far more drastic?

    1. I do not condone either.

    2. Whats the difference…
      Most people in the U.S. think that male circumcision is oke-dokey because they and their fathers and grand-fathers were clipped, but female circumcision is something icky that only heathens do.

    3. Because male circumcision is the removal of the foreskin, nothing more.
      Female genital mutilation is called such because it is a clitorectomy – the removal of the clitoris. The equivalent action on a male would be the removal of the penis.

      In other words, they are treated differently because they are completely different things. If there were groups cutting off the penis, you’d find widespread opposition to that, too.

      1. If you read the above article this isn’t that at all, along with a bunch of other things that are called FGM

      2. “Because male circumcision is the removal of the foreskin, nothing more. Female genital mutilation is called such because it is a clitorectomy – the removal of the clitoris. The equivalent action on a male would be the removal of the penis.”

        You appear to have missed the relevant lecture during medical school.

  12. This isn’t radically different from US v. Windsor. The Executive Branch took the position that DOMA was unconstitutional, notified Congress of its position, and BLAG intervened to defend the constitutionality of the statute. The Executive Branch did not oppose the motion to intervene, so BLAG could do its thing.

    Here, I think it’s dumb that BLAG has intervened when the “B” is not satisfied. I can’t recall whether BLAG was truly bipartisan in its US v. Windsor intervention.

    In any case, the entire point of 28 USC 530D is to give Congress notice when the President decides a statute is unconstitutional and won’t defend it, so that Congress can step in and defend the law itself. The Executive’s argument against constitutionality may pass the smell test, but its opposition to the motion to intervene doesn’t. The entire argument rests on this false premise that BLAG is asking to prosecute the underlying criminal charge. But from BLAG’s motion to intervene, they’re doing no such thing:

    “If this Court on appeal reverses the district court’s decision that Section 116(a) is unconstitutional, that judgment will make it possible for the Justice Department to exercise its discretion to move forward with the prosecutions it initiated here under Section 116(a), if it wishes to do so. The House moves to intervene here solely to defend the constitutionality of Section 116(a).”

    I do agree with the Executive Branch’s argument re: standing, for the same reasons stated by Scalia in his Windsor dissent.

    1. There are a number of significant differences between this case and US v Windsor. A criminal vs Civil case. A question of who the original defendant is. A law which is not being enforced compared to one continuing to be enforced (but not defended). And more

      But, really the critical differences here are ones of politics and intent. In US v Windsor, the executive branch wanted the law struck down based on broad policy, they wanted no saving construction, it was an area of intense debate nationwide debate, and of course, there was a clear court case to be made, one that got 4 Supreme Court Justices to agree with it. The Executive wanted the law struck down (based on politics), and not defending it was a way around Congress.

      In this case, the Executive doesn’t want the law struck down. They want a saving construction made (which should be relatively easy), and suggested one to Congress. There isn’t really the same level of debate about FGM being bad, they just want a legal means to enforce it, and the current law doesn’t meet that standard. A fast, simple law by Congress could take days to a couple weeks. Court cases and appeals could take months.

      If Democrats really cared about FGM, a fast law change, denoting a nexus to interstate commerce (IE, crossing state lines with the victims) would suffice. By dragging it out in the courts….

      1. The criminal vs. civil case distinction may be significant, but I’m not sure it is dispositive. We will see. I think the lack of enforcement (in this case) breaks in favor of letting BLAG step in, although I’m against them doing so for the separate reasons set forth above.

        “The Executive wanted the law struck down (based on politics), and not defending it was a way around Congress.”

        Except the DOJ didn’t oppose BLAG’s intervention.

        “In this case, the Executive doesn’t want the law struck down. They want a saving construction made (which should be relatively easy), and suggested one to Congress.”

        Saying you won’t enforce Law X without savings clause Y that doesn’t exist is the same thing as saying you want Law X struck down. It’s a distinction with no difference.

        “If Democrats really cared about FGM…”

        What is annoying is that both you and the Executive branch are using this case as an opportunity to politicize the issue. Normal comity between coordinate branches would involve the Executive telling Congress and letting them come in to the defend the law on whatever basis they wanted. The opposition to the intervention is not defensible, except on standing grounds, and that argument can be made by the court sua sponte. The law was passed in 1996, so it could only have been enacted with Republican support.

        What it smells like is a normal dispute about federalism. I suspect that present-day Republicans, and the administration, want to clamp down on expansive federal laws. Nothing wrong with that. Just like it was apparent that President Obama was trying to kill DOMA. That’s his prerogative, I guess. The difference is that when President Obama decides not to enforce a law, he still directs his underlings to stand aside and let Congress defend the law. But now that isn’t happening.

        I’m opposed to BLAG stepping in, but I also disagree with the Executive branch’s decision to contest intervention.

        1. “Saying you won’t enforce Law X without savings clause Y that doesn’t exist is the same thing as saying you want Law X struck down. It’s a distinction with no difference”

          It’s a major difference. It’s a difference in policy. It understand the limitations on federal power, while asking the laws that make the policy conform to the limitations.

          Given the extraordinary rarity of this type of Congressional issue, it looks like Congress is attempting to politicize it.

          1. “It’s a major difference. It’s a difference in policy. It understand the limitations on federal power, while asking the laws that make the policy conform to the limitations.”

            Ok, try this. Law X discriminates against black people impermissibly under the 14A or reverse incorporation under the 5A. Law X is unconstitutional unless clause Y (relating to the impermissible discrimination) is removed. Law X is unconstitutional.

            It’s not functionally different than your scenario. If Law X can only be made constitutional with Y, it isn’t constitutional. Full stop.

            1. OK. Try this. Law X accomplishes policy goal Y (equal representation for African Americans in Congress), but as written technically discriminates against African Americans under the 14th Amendment. The Executive supports policy goal Y, but understands under previous court cases, as written Law X is unconstitutional. The Executive suggests a small change in Law X that would avoid the discrimination, but still allow for policy goal Y, in accordance with Congress’s initial wishes.

              Law X is unconstitutional. True. The policy goals of Law X may not be unconstitutional. True?

              1. If you agree with me that in your hypo that the Executive believes X–as drafted, without jurisdictional hook,or whatever–is unconstitutional and should not be enforced, then we don’t have anything else to argue about.

    2. The problem is, there is already a court decision, the government lost and declined to appeal, and the case is closed. Thus there is no case before the courts for a third party to join, and no precedent for Congress to file an appeal or a new case.

  13. The House of Representatives can always impeach a prosecutor who drops a prosecution, under a constitutionally-valid law, when they’re able to prove guilt.

    The Senate, of course, will have to make the final decision about whether the law is actually objectively constitutional, because if it’s not it would be quite wrong to prosecute someone under it.

    1. The actual United States Attorney for the district, maybe. I’m skeptical that line AUSAs are “civil officers of the United States” for purpose of Article II, section 4.

  14. I’ll just note that I’m interested in the interpretation of double jeopardy under our precedents.

    Apparently, if the jury says “Not Guilty,” that’s the end of the prosecution.

    But if a judge says “even if the prosecution has its facts right, there was no crime here because the law is unconstitutional,” then the prosecution can appeal to reinstate the charges and have a trial.

    I’m sure there’s a lot of careful lawsplaining to distinguish these two situations, but I find it interesting.

    1. Not really. Jury is determining facts. Judge is interpreting law. They are two separate things.

      1. Either way, there’s a decision that you didn’t commit a crime. In one case, the prosecutor can’t appeal, in the other it can.

    2. When the government lost at trial, they lost, period. (Aside from the thing about separate Federal and State jurisdictions – that is, a _different government_ can bring the same case again under separate laws without invoking double jeopardy.)

      But when the judge dismisses a criminal case before a decision is reached in a trial, he chooses whether to dismiss with or without prejudice. “With prejudice” is generally a fact-based decision, when the judge decides the prosecution lacks enough evidence to go to trial, or that prosecution misconduct requires ending the case. Such a decision cannot be appealed. A decision on the facts is generally final, unless a decision for the prosecution was utterly irrational. The government has so many advantages in our current criminal justice system that giving them a do-over after the case has advanced too far is unfair.

      When it’s an issue of law, judges usually dismiss without prejudice, which allows an appeal, or re-writing the charges, getting a new indictment, and bringing the case again.

  15. Congress has no power to prosecute.

    And absent a live prosecution, there is no Article III case or controversy and no justiciability.

    Congress here is doing nothing more than asking for an advisory opinion.

  16. Its a bad idea to let a single House litigate civil or criminal cases, except probably contempt. A single House is constitutionally irrelevant, it is both houses that together make up Congress. It is Congress that arguably has an interest in upholding a law, not just one house.

    Maybe Congress can have standing to uphold its interests but a single house, never imho.

    1. Would that also be true if the law was based on a treaty and the Senate was the one asking for it?

      I happen to agree with you that the House has not authority here, but I don’t think it is about it being a single chamber instead of the full Congress.

  17. I hope the limitation period for crimes deriving from child abuse in this context does not lapse until at least a couple of years after the child becomes an adult. That should provide plenty of time for reason to prevail and for criminals to be prosecuted.

    1. No one suggested they shouldn’t be prosecuted. Only that it should be the State that does it, not the Feds.

  18. […] blogged about this case a few days ago, and also asked Prof. Jonathan Nash, the author of a […]

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