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Started By
Message
re: Can R v W be codified into law, post USSC decision?
Posted on 7/1/22 at 12:46 pm to SlowFlowPro
Posted on 7/1/22 at 12:46 pm to SlowFlowPro
Jeebus - You CANNOT let this go. To the extent abortions are a commercial transaction, it takes place inside one state.
The statutes analyzed in Lopez AND the VAW WERE PASSED PURSUANT TO THE COMMERCE CLAUSE with the federal gvt arguing that the prohibited conduct affected interstate commerce. Lopez, for example, had a gun that was purchased in commerce. Like the abortion doctor buys his abortion tools from interstate commerce.
The holdings in Lopez and the VAW case found that congress lacked the power UNDER THE COMMERCE CLAUSE to regulate intrastate private conduct.
The VAW case is the most recent. It upheld Heart of Atlanta bc the channels of interstate commerce were involved, so the court held that congress could pass the law even though its motive was to cure a social ill by deference to the commerce clause.
Elizabeth Warren may think she has the authority- but she’s also a blonde woman who thinks she’s an Indian so I don’t know what else to tell you.
The statutes analyzed in Lopez AND the VAW WERE PASSED PURSUANT TO THE COMMERCE CLAUSE with the federal gvt arguing that the prohibited conduct affected interstate commerce. Lopez, for example, had a gun that was purchased in commerce. Like the abortion doctor buys his abortion tools from interstate commerce.
The holdings in Lopez and the VAW case found that congress lacked the power UNDER THE COMMERCE CLAUSE to regulate intrastate private conduct.
The VAW case is the most recent. It upheld Heart of Atlanta bc the channels of interstate commerce were involved, so the court held that congress could pass the law even though its motive was to cure a social ill by deference to the commerce clause.
Elizabeth Warren may think she has the authority- but she’s also a blonde woman who thinks she’s an Indian so I don’t know what else to tell you.
2
Posted on 7/1/22 at 12:52 pm to Wednesday
quote:I hope you are correct, but it would be ridiculous understatement to say only that "I am skeptical."
5 members of SCOTUS have recently located their spines.
I would err on the side of them not losing it again
Posted on 7/1/22 at 1:20 pm to MJackson
Uncertain. Likely not directly. Through Medicaid funding, maybe.
Posted on 7/1/22 at 1:30 pm to AggieHank86
quote:Change would to could and there would be many. All con law is decided backwards.
I am genuinely curious how many JD degrees hang on the walls of the posters insisting that Congress would be LEGALLY precluded from passing national abortion legislation.
Posted on 7/1/22 at 1:39 pm to AggieHank86
quote:Agreed.
I am genuinely curious how many JD degrees hang on the walls of the posters insisting that Congress would be LEGALLY precluded from passing national abortion legislation.
I suspect that Wednesday would be the only one, and she is wishcasting what she WANTS (where I agree with her), rather than analyzing the current state of applicable jurisprudence.
Posted on 7/1/22 at 1:40 pm to Wednesday
quote:
Lopez, for example, had a gun that was purchased in commerce. Like the abortion doctor buys his abortion tools from interstate commerce.
The law involved the carrying of a firearm, not the purchase of a firearm. "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. "
If your argument were correct, then how are federal laws re: drug possession still enforced?
Go read Gonzalez v. Raich. That permitted prosecution of a person who was in possession of MJ he cultivated himself (100% intrastate).
Posted on 7/1/22 at 1:52 pm to Roll Tide Ravens
quote:
Congress could pass a law that would essentially protect the ability to have an abortion
While not arguing or even necessarily disagreeing, I’m having a hard time finding the federal question or commerce clause or vehicle giving federal authority to make that law. They need a vehicle that allows them to do the law.
Posted on 7/1/22 at 1:53 pm to Wednesday
Sorry Wednesday accidentally hit downvote
I also hit upvote too !
I also hit upvote too !
Posted on 7/1/22 at 1:54 pm to AgSGT
quote:
They would have to make a new amendment, good luck with that
As if the Commerce Clause has never been abused before.....
Posted on 7/1/22 at 1:54 pm to dafif
quote:
or commerce clause or vehicle
Everything related to abortion involves healthcare, which is commercial activity. It's a service that is being sold using equipment that was bought/sold (across state lines in almost every case, I imagine), in an area highly regulated by federal law and regulations already.
Posted on 7/1/22 at 1:57 pm to TerryDawg03
quote:Why would there need to be an amendment?
I would think that a constitutional amendment would be required
It went back to the states because it is not in the constitution and there are no federal laws regulating it. But Congress still has the power to pass laws, so there is no constitutional hurdle. The only saving grace is procedural blocks, which is why those snakes keep bringing up the filibuster.
Posted on 7/1/22 at 1:58 pm to SlowFlowPro
I would suggest if that is the argument then nothing is outside federal legislation and the commerce clause… which is where we were / headed.
I suspect Thomas would love the opportunity to gut that and he has said so on many occasions
Ask yourself this question: do you think the founders meant the commerce clause to allow for every single law passed by the Congress?
I suspect Thomas would love the opportunity to gut that and he has said so on many occasions
Ask yourself this question: do you think the founders meant the commerce clause to allow for every single law passed by the Congress?
Posted on 7/1/22 at 1:59 pm to MJackson
quote:How Congress Can Codify the Right to Obtain an Abortion:
how the gov't can legalize RvW after the supreme court has removed federal protections
Congress must find authority in the Constitution to enact any statute. Here, the most likely source of authority would be the Commerce Clause.
What Happens If Congress Codifies the Right to Obtain an Abortion:
Pursuant to the Supremacy Clause of the Constitution, the federal statute enacting a right to an abortion would be the law for the entire United States.
Why Would Congress Not Codify the Right to Obtain an Abortion:
1. Political Impediments:
Congress might be unable to find the votes to enact such legislation let alone get around the filibuster.
2. Federal Statutes Can Be Repealed and/or Amended:
While a Democratic Congress and President might be able to codify the right to abortion, federal statutes can be repealed or amended when the parties in DC change. What's sauce for the goose is sauce for the gander. A Republican Congress and President could make abortion illegal in every state.
Posted on 7/1/22 at 2:07 pm to MJackson
Personally, I don't see how they can pass a law to allow killing a person. This is why every state needs to pass a personhood law for pre-born people.
Posted on 7/1/22 at 2:09 pm to Landmass
quote:State laws cannot trump federal laws.
Personally, I don't see how they can pass a law to allow killing a person. This is why every state needs to pass a personhood law for pre-born people.
Posted on 7/1/22 at 2:13 pm to SlowFlowPro
That’s exactly how it would be done.
Congress passes a law that says you have to allow abortion on some level in order to get full Medicare/Medicaid funding. It’s well established that Congress has the power fund or not fund things essentially as they see fit - it’s why legislatures don’t have to pay civil judgments against them unless they feel like it.
The second half of the statute is a model abortion law that a state can use for its own law. Use of that exact wording would be a safe harbor that guarantees you get the money. Or a state can pass its own abortion law and hope it complies enough with federal funding law to get their money.
Just like using the potential loss of federal Highway money to get every state to pass a .08 BAL level
Congress passes a law that says you have to allow abortion on some level in order to get full Medicare/Medicaid funding. It’s well established that Congress has the power fund or not fund things essentially as they see fit - it’s why legislatures don’t have to pay civil judgments against them unless they feel like it.
The second half of the statute is a model abortion law that a state can use for its own law. Use of that exact wording would be a safe harbor that guarantees you get the money. Or a state can pass its own abortion law and hope it complies enough with federal funding law to get their money.
Just like using the potential loss of federal Highway money to get every state to pass a .08 BAL level
Posted on 7/1/22 at 2:26 pm to SlowFlowPro
quote:
The law involved the carrying of a firearm, not the purchase of a firearm. "The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. "
If your argument were correct, then how are federal laws re: drug possession still enforced?
Go read Gonzalez v. Raich. That permitted prosecution of a person who was in possession of MJ he cultivated himself (100% intrastate).
You realize that you are arguing with someone who had multiple lengthy posts over the course of several months explaining how the 2020 election could/should be overturned? Logic has no place here.
Posted on 7/1/22 at 2:59 pm to Martin Blank
quote:
Congress passes a law that says you have to allow abortion on some level in order to get full Medicare/Medicaid funding
Your entire post is an excellent analysis and spot on in legal theory
I am a big proponent of turning down federal funds like your example with the alcohol percentage. I am not sure your argument would work for Medicare funding but it certainly is possible. Without looking anything up I thought they turned down a Trump program cutting off funding for something similar
Posted on 7/1/22 at 3:18 pm to Lou Pai
quote:
Ben Shapiro was saying it wouldn't pass constitutional muster. Not clear as to why.
Government over-reach would be my guess. Of course there are 10 billion examples of government over-reach that has been codified, so WTH. The Government is not endowed with powers not enumerated in the Constitution. Those powers are reserved for the State and local governments, and for the people themselves.
Posted on 7/1/22 at 4:13 pm to MJackson
It could, but it won't. It'll get even harder the closet to November we get. After that, no chance at least for the foreseeable future.
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