At Volokh Conspiracy, Ilya Somin: Justice Department Decides Not to Appeal Court Ruling Striking Down Federal Law Banning Female Genital Mutilation. From the introduction:
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.
The case is United States v. Nargarwala (E.D. Mich. 2018).
Professor Somin raises a related question: does the President have an obligation to defend the law? He says no:
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.
Posted at 6:03 AM