Why the Federal Law Banning Female Genital Mutilation is Unconstitutional

FGM is a horrible crime. But banning it is one of many issues the Constitution leaves to the states, much like banning rape and murder. Yesterday's court decision striking down the law was correct.

World Health Organization infographic on female genital mutilation.

Yesterday's federal district court decision striking down the federal law banning female genital mutilation may seem cruel or unfeeling. But it is nonetheless correct. FGM is a terrible crime; one that deserves severe punishment. But it is nonetheless an issue the Constitution leaves to the states - as is also the case with the punishment of many other awful crimes, include, rape, murder, and assault. The federal government offers multiple theories under which this law is authorized by the Constitution. Judge Bernard Friedman was nonetheless, right to reject them, though on one point he should have taken the analysis a bit further.

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, as Judge Friedman explains, 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:

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 [Paul] 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." [United States v.] 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.

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. And if the Clause really did give Congress that kind of virtually unrestricted authority, there would be no need for many of the other enumerated powers of Congress, since the Commerce Clause would be enough to give the federal government the power to ban or regulate pretty much anything it wants. For example, there would be no need for the government to have the power to make rules for the "government and regulation" of the armed forces, or the power to regulate and organize state militias, since the activities of both federal and state armed forces surely have an impact on interstate commerce (a far larger one than FGM, in fact).

The federal government is on stronger ground in arguing that the federal FGM ban is authorized by a combination of the treaty power and the Necessary and Proper Clause. The Necessary and Proper Clause gives Congress the power to make laws that are "necessary and proper for carrying into execution" other federal powers. In this case, the relevant federal could be the power to make treaties, specifically the International Covenant on Civil and Political Rights (ICCPR). Judge Friedman effectively explains why the FGM ban cannot be justified as a tool for enforcing Article 3 of the 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." As he points out "[t]his article seeks to ensure equal civil and political rights (e.g., the freedom of expression, the right to participate in elections, and protections for defendants in criminal proceedings) for men and women, while the FGM statute seeks to protect girls aged seventeen and younger from a particular form of physical abuse."

The federal government also claims that the FGM ban is needed to enforce Article 24 of the ICCPR, 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." Judge Friedman argues that the FGM law does not really advance the "antidiscrimination" purposes of Article 24 because it "it does not logically further the goal of protecting children on a nondiscriminatory basis." Here, I think Judge Friedman potentially misses a key point. To the extent that FGM targets almost exclusively girls rather than boys, and the practice is the result of ingrained sexism in the societies that engage in it, it seems likely that banning really does help ensure that girls get the "measures of protection" needed by minors on par with boys. The connection between FGM and gender-based discrimination against girls is much stronger than Judge Friedman suggests.

Nonetheless, it doesn't follow that a federal FGM ban is constitutional. As Judge Friedman notes, "federalism concerns deprive Congress of the power to enact this statute" even if it is otherwise within the scope of the ICCPR. The treaty in question requires implementation in accordance with the "constitutional processes" of signatory states, and federalism is one of those processes, in the case of the US. Judge Friedman points out that 27 states specifically ban FGM under state law, and others clearly forbid it under more general laws banning assault and child abuse. These state laws are sufficient to carry out US treaty obligations. There is no indication that state officials are somehow unwilling or unable to pursue FGM cases.

There is a deeper question here about the extent to which the federal government even has the power to sign legally binding treaties on subject matter that is otherwise outside the scope of federal authority. In my view, for reasons summarized here, federal treaty power only extends to making commitments on issues otherwise within the scope of federal authority.

In Bond v. United States II (2014), as Judge Friedman points out, the Supreme Court ruled that a treaty that authorized Congress to pass laws banning "purely local crime" would raise serious constitutional problems, and might well be unconstitutional. The issue has not definitively resolved, and may have to await a future Supreme Court decision. Perhaps the justices might even address it in this case, if it ever reaches the Supreme Court.

Many readers may wonder why it matters whether FGM is banned by state law or federal. Almost everyone agrees it is a brutal practice that should be suppressed. Why, then, should get hung up on legal technicalities about federalism? But if we interpret the Commerce Clause broadly enough to cover FGM, it would also give the federal government the power to ban or restrict almost any other activity that effects the economy in some way. If we interpret the treaty power that broadly, the federal government could then acquire the power to ban almost any activity simply by finding a foreign power willing to sign a treaty on the subject (assuming the treaty is then ratified by the Senate).

Such a massive concentration of power in the federal government is dangerous, particularly in a society that is both highly diverse and deeply polarized, If we want to preserve constitutional limits on federal power, we should resist the temptation to make every awful practice a federal crime - especially in a case like this one where state law is more than up to the job.