The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Biden Administration is reportedly considering a range of executive actions to safeguard abortion rights if, as anticipated, the Supreme Court overturns Roe v. Wade in the Dobbs case this term. The New York Times reports that the White House has been consulting with various legal academics on various steps the Administration could take. The White House also disclosed that Vice President Kamala Harris met with a group of constitutional law professors on Tuesday.
From the NYT:
Some of the ideas under consideration include declaring a national public health emergency, readying the Justice Department to fight any attempt by states to criminalize travel for the purpose of obtaining an abortion, and asserting that Food and Drug Administration regulations granting approval to abortion medications pre-empt any state bans, the officials said. . . .
No executive order can re-establish a constitutional right. It would take an act of Congress to restore a national legal standard barring states from outlawing abortion, and proponents currently lack sufficient votes in the Senate, where Republicans can filibuster such a bill. But Mr. Biden has signaled that he wants to move on his own.
Most of these strategies would require particularly aggressive assertions of executive power. As noted, one idea is to declare that FDA regulations would preempt state laws limiting access to abortifacient drugs. When the Bush Administration took a similar view of FDA authority (albeit to constrain tort litigation, not state regulations), many progressives and libertarians objected on the grounds only Congress may preempt state laws. Now the shoe could be on the other foot.
Laurence Tribe, a Harvard Law School professor who has consulted with [the White House], said in an interview that while he did not want "to pour cold water on people's peaceful reactions to impending disaster," some of the proposals the White House was being lobbied to consider were unwise and implausible extensions of executive power.
"It would take attention from the things that are really relevant — that the Supreme Court is out of control and we ought to be very critical of it — and shift the criticism to the president for responding in kind and doing things that are every bit as ungrounded in the Constitution as the court's overruling of Roe will be," Mr. Tribe warned.
According to the NYT report, the Administration is weighing the trade-off between modest actions that would be legally defensible, and bold, symbolic actions with questionable legal authority.
In the past, Mr. Biden has adopted a position that his legal team warned him was unlikely to stand up in court, betting that the political benefits of his executive actions outweighed the legal risks. In August, as House Democrats urged him to reverse course on letting a pandemic-related ban on evicting renters expire, Mr. Biden unilaterally extended the measure.
The move won praise from the left, at a moment when he needed to hold his coalition together in order to advance his legislative agenda. But while Mr. Biden's decision bought a little more time for pandemic assistance funds to reach renters, its practical impact was limited because courts, as predicted, swiftly struck it down — and his critics accused him of lawlessness.
Another idea being discussed is using federal enclaves as sanctuaries of a sort.
One calls for Mr. Biden to invite abortion doctors to work at federal enclaves, like military bases, inside states that criminalize abortion. State prosecutors lack jurisdiction in such zones, so the federal government handles crimes there, and it is not always clear whether criminal laws at the state level apply.
Doctors might still face challenges to their state medical licenses. And while the Justice Department under Mr. Biden could decline to pursue charges as a policy matter, control of the department could flip in the 2024 presidential election, and federal prosecutors could then charge people with crimes, like abortion, retroactively.
It is certainly true that this sort of strategy would be dependent upon Democratic control of the White House, but the suggestion that federal prosecutors could charge people with crimes seems like a stretch. Abortion is not a crime under federal law. But perhaps facilitating the use of federal resources in this way would violate the Hyde Amendment and laws concerning the misuse of federal funds. [UPDATE: Federal prosecutors may enforce state law in federal enclaves under certain conditions, pursuant to the Assimilative Crimes Act, so that explains the language of the story.]
Another idea is to declare a public health emergency so as to enable doctors to practice across state lines so that doctors could facilitate abortions in states without fear of sanctions from state licensing authorities or other legal liability. This policy, too, could be reversed by a subsequent administration.