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re: Can’t congress pass a law making abortion legal nationwide?

Posted on 6/24/22 at 6:00 pm to
Posted by SlowFlowPro
With populists, expect populism
Member since Jan 2004
476983 posts
Posted on 6/24/22 at 6:00 pm to
quote:

Would they have the balls to do it?

At some point I imagine they may.

quote:

Half the country would see that as end a rounding the highest court in the land.

People who don't understand the law.

This is from Kavabaugh's concurrence:




quote:

On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.
Posted by loogaroo
Welsh
Member since Dec 2005
42398 posts
Posted on 6/24/22 at 6:03 pm to
They NEED voting issues because they stand for nothing.
Posted by TrueTiger
Chicken's most valuable
Member since Sep 2004
82395 posts
Posted on 6/24/22 at 6:05 pm to

They did the Civil Rights Act so I don't see why not.
Posted by Wednesday
Member since Aug 2017
17300 posts
Posted on 6/24/22 at 6:13 pm to
quote:

Where in the case did the court state that there is no federal power to regulate abortion?


It’s the entire basis for the holding.

To your other point, I am not all the way sure that Congress used the Commerce Clause to regulate discrimination. My recollection from Con Law II (an area which is not my specialty so I’m looking back some years) is that Congress used the 14th amendment itself.

I think the use of the 14th was criticized by Rand Paul bc it’s the only time a constitutional amendment addressing the recognition of a right was utilized as an enabling authority for Congress. I don’t believe any of these public accommodation laws were ever challenged once passed. It was the only smear against Rand Paul that got any traction. He was portrayed as a racist bc he questioned whether Congress had the authority to pass the law. Because leftists are idiots who think the constitution protects them against meanie pants, as opposed to protecting them from govt overreach.

I think (again not all the way sure) that Title VII (sexual harassment/racial discrimination/discrimination in employment) only come into play for employers with more than a certain # of employees in order to meet commerce clause concerns. There is copycat legislation in all 50 states - that makes it apply to smaller employers. So, effectively discrimination in employment is regulated on state and federal level.

People who don’t understand constitutional law don’t understand that the concepts of separation of powers and enumerated powers. Constitutional Law is an area of law (as I see it) that determines whether state action exceeds the limits of powers set by the constitution. Not whether the actual law is a good idea or a bad idea. I think the law limiting abortion is a good idea. The fact that I think it’s good public policy, does not make any law passed by any governing body constitutional.

There is no enumerated power that permits the Congress the authority to regulate abortions. They can’t really use the commerce clause bc the states aren’t regulating abortions outside of state lines. Accordingly it’s not interstate commerce.

My 2 cents
This post was edited on 6/24/22 at 6:18 pm
Posted by SlowFlowPro
With populists, expect populism
Member since Jan 2004
476983 posts
Posted on 6/24/22 at 6:18 pm to
quote:

It’s the entire basis for the holding.

No it's not.

This was about a state law and precedent around a judicially-created "right".

In what way does that apply to federal legislation?

quote:

I am not all the way sure that Congress used the Commerce Clause to regulate discrimination. My recollection from Con Law II (an area which is not my specialty so I’m looking back some years) is that Congress used the 14th amendment itself.


Uh, no. Read Heart of Atlanta Motel. It's specifically about ICC providing authority for the CRA. Here is a quote:

quote:

In framing Title II of this Act Congress was dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the particular obstruction to interstate commerce with which it was dealing was also deemed a moral and social wrong.


quote:

There is no enumerated power that permits the Congress the authority to regulate abortions

What enumerated right permits Congress the authority to regulate civil rights?

Posted by LRB1967
Tennessee
Member since Dec 2020
23173 posts
Posted on 6/24/22 at 6:20 pm to
They need 60 votes in the Senate which they do not have at this time.
Posted by Wednesday
Member since Aug 2017
17300 posts
Posted on 6/24/22 at 6:22 pm to
quote:

What enumerated right permits Congress the authority to regulate civil rights?


None

I agree with you that the commerce clause has been stretched to the point it should break, so if you’re right, and that is the basis for public accommodations laws, Congress didn’t have the authority to pass public accommodations laws when they did. I think public accommodations laws are probably a good idea (particularly considering the Jim Crow madness they were addressing) but again, good idea doesn’t mean a constitutional authority exists.

I don’t believe that the commerce clause (if I’m incorrect on the public accommodations law) should be a basis for “regulating” civil rights - because civil rights themselves mean rights you and I own, so the federal government needs to back out of the topic and is entitled to no opinion on it.

If State laws permitting discrimination existed in sex/race, etc. in public accommodations existed, they would have to survive strict scrutiny to apply. E.g. Brown v. Board of Education. Jim Crow laws can’t survive strict scrutiny and should be struck down by the SCOTUS as a violation of substantive due process pursuant to the language of the 14A (we’re entitled to equal protection under the law - aka substantive due process).

By contrast to the substantive right to enjoy equal protections under the law, there is no substantive right to Abortions. Leftist morons treat it like the 1A/2A, which are examples of substantive rights. Despite that they abortions aren’t civil rights guaranteed by the constitution, ppl are free to have them unless restrained by the states. The states may limit abortions in any way they want, including outright bans, to restrictions by trimester, without running afoul of the Federal Constitution.

By contrast, the Federal Government has no authority to limit abortions enumerated in the constitution, and no authority to guarantee them.

In addition, I don’t think that the commerce clause would apply bc traditionally public health and safety powers, believe it or not after the covid shitshow, rests with the states. Thats why Trump let the states decide - and why Whitmer was a psycho and Desantis was awesome. Different government approaches. If these abortion bitches are really sincere, and it’s about health then Michigan is free to abort away, and Florida can limit them however they please. Congress can have no opinion.
This post was edited on 6/24/22 at 6:46 pm
Posted by NineLineBind
LA....no, the other one
Member since May 2020
8630 posts
Posted on 6/24/22 at 6:25 pm to
Congress doesn’t have the guts to pass much of anything, they punt it to the courts every chance they get. Those in congress perpetually worry about the next election to the exclusion of everything that is right for the country. That is why we need term limits.
Posted by TrueTiger
Chicken's most valuable
Member since Sep 2004
82395 posts
Posted on 6/24/22 at 6:27 pm to
quote:

What enumerated right permits Congress the authority to regulate civil rights?


you already answered

SCOTUS hung that all on the hook of the commerce clause.
Posted by SlowFlowPro
With populists, expect populism
Member since Jan 2004
476983 posts
Posted on 6/25/22 at 6:55 am to
quote:

I don’t think that the commerce clause would apply bc traditionally public health and safety powers, believe it or not after the covid shitshow, rests with the states.

That's kind of like why administrations have so much power: only because Congress doesn't want to rule THAT much right now.

If Mr. Filburn was affecting interstate commerce because he farmed 12 acres of wheat, because that affected interstate commerce, you better believe all of that medical equipment used by the healthcare profession also part of interstate commerce.

Also, again, even without direct ICC power, the feds can just make states bend the knee. Which state would give up federal Medicaid money to make abortion illegal? None.
Posted by Penrod
Member since Jan 2011
55573 posts
Posted on 6/25/22 at 7:00 am to
quote:

How?

The Democrats probably believe that this could be a Hail Mary for the midterms because it will energize their base and move lots of suburban women who were otherwise disgusted with Biden’s performance.
Posted by udtiger
Over your left shoulder
Member since Nov 2006
115454 posts
Posted on 6/25/22 at 7:02 am to
Yes, but they can't make states make it legal.

Think about pot. Congress could legalize it, but states ate not required to.

Same as emission standards for cars, California's are more strict than national.
Posted by SlowFlowPro
With populists, expect populism
Member since Jan 2004
476983 posts
Posted on 6/25/22 at 7:05 am to
quote:

Yes, but they can't make states make it legal.

I don't know about that.

quote:

Same as emission standards for cars, California's are more strict than national.

With this example, the federal law could permit abortions up to 15 weeks but California could go 20. Your example doesn't support your argument.
Posted by udtiger
Over your left shoulder
Member since Nov 2006
115454 posts
Posted on 6/25/22 at 7:07 am to
As long as abortion restrictions are in the criminal code, it's far less likely that a national law will void a state law.
Posted by SlowFlowPro
With populists, expect populism
Member since Jan 2004
476983 posts
Posted on 6/25/22 at 7:10 am to
quote:

As long as abortion restrictions are in the criminal code, it's far less likely that a national law will void a state law.


Did that argument work for Jim Crow laws?
Posted by trinidadtiger
Member since Jun 2017
19987 posts
Posted on 6/25/22 at 7:14 am to
quote:

If not a direct law, they can tie federal funding of health-related spending (like Medicaid) to abortion laws. That would almost assuredly pass constitutional muster.



Sounds about right for this admin, cut off medical care to the elderly and poor unless the state allows killing.

Just what they did with the schools, threatened to cut off breakfast and lunch programs for poor blacks if they did not build gay bathrooms.
Posted by WhereisAtlanta
Member since Jun 2016
847 posts
Posted on 6/25/22 at 7:19 am to
Of course they can and that is exactly what should happen from a legal standpoint, they can even pass a constitutional amendment which the SC has zero choice other than accept.


The SC should never be making law, the fact they do is down to a useless congress.
Posted by jimmy the leg
Member since Aug 2007
44294 posts
Posted on 6/25/22 at 7:26 am to
quote:

Also, this is ignoring Congress's ability to withhold medically-related federal funding from states who enact certain abortion restrictions. What would prevent Congress from doing that?


Nothing.

But using federal funding as a cudgel only makes sense as long as “your side” has power.

The pendulum is not stationary.
Posted by jimmy the leg
Member since Aug 2007
44294 posts
Posted on 6/25/22 at 7:28 am to
quote:

WhereisAtlanta


Aren’t you the guy that said Biden has nothing to do with rising fuel costs?
Posted by NC_Tigah
Make Orwell Fiction Again
Member since Sep 2003
138978 posts
Posted on 6/25/22 at 7:28 am to
quote:

Can’t congress pass a law making abortion legal nationwide?
Yes.
Civil Rights would be the appropriate packaging.

Which brings us round to the issue of the 3 post-RvW Democrat Congressional Supermajorities where the issue could have been legislatively ensconced, and wasn't.
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