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Started By
Message
If the draft becomes the decision, it does not support a Congressional solution
Posted on 5/3/22 at 1:00 pm
Posted on 5/3/22 at 1:00 pm
As a number have noted, almost as if it was expected, there had been a drumbeat to "codify" Roe in Congress (going so far as for Bernie to decry the filibuster). However, reviewing the draft, the majority in no way suggests or even implies that Congress could pass such a law that would survive constitutional scrutiny.
Notwithstanding that this "decision" flatly states there is no constitutional right abortion (which, stated another way, means that there is no constitutional basis for the claimed "right" such that there would be no constitutional basis for the Congress to "grant" that right [10th Amendment]), the language clearly shows that references to "elected representatives" means STATE legislatures.
Notwithstanding that this "decision" flatly states there is no constitutional right abortion (which, stated another way, means that there is no constitutional basis for the claimed "right" such that there would be no constitutional basis for the Congress to "grant" that right [10th Amendment]), the language clearly shows that references to "elected representatives" means STATE legislatures.
4
Posted on 5/3/22 at 1:15 pm to udtiger
quote:Your post is truly awful constitutional analysis.
As a number have noted, almost as if it was expected, there had been a drumbeat to "codify" Roe in Congress (going so far as for Bernie to decry the filibuster). However, reviewing the draft, the majority in no way suggests or even implies that Congress could pass such a law that would survive constitutional scrutiny.
Notwithstanding that this "decision" flatly states there is no constitutional right abortion (which, stated another way, means that there is no constitutional basis for the claimed "right" such that there would be no constitutional basis for the Congress to "grant" that right [10th Amendment]), the language clearly shows that references to "elected representatives" means STATE legislatures.
Posted on 5/3/22 at 1:21 pm to udtiger
I haven’t delved into it but I think the issue is that there’s no constitutional protection for it, hence it is left to the states.
Posted on 5/3/22 at 1:25 pm to Salviati
quote:
Your post is truly awful constitutional analysis.
oh...do enlighten me.
Posted on 5/3/22 at 1:27 pm to udtiger
quote:
As a number have noted, almost as if it was expected, there had been a drumbeat to "codify" Roe in Congress (going so far as for Bernie to decry the filibuster). However, reviewing the draft, the majority in no way suggests or even implies that Congress could pass such a law that would survive constitutional scrutiny.
Notwithstanding that this "decision" flatly states there is no constitutional right abortion (which, stated another way, means that there is no constitutional basis for the claimed "right" such that there would be no constitutional basis for the Congress to "grant" that right [10th Amendment]), the language clearly shows that references to "elected representatives" means STATE legislatures.
The Constitution can certainly be amended so it could be codified and make your rather weak argument a moot point.
Posted on 5/3/22 at 1:28 pm to Havoc
quote:If there is no "Constitutional right" to abortion, that does NOT automatically mean that Congress is prohibited from legislating a federal "statutory right" into existence.
I haven’t delved into it but I think the issue is that there’s no constitutional protection for it, hence it is left to the states.
Sure, that "statutory right" will conflict with state-level prohibitions in some jurisdictions. More litigation will ensue. The Supremacy Clause is a different can of worms with an entirely different set of standards.
Posted on 5/3/22 at 1:31 pm to UAinSOUTHAL
quote:
The Constitution can certainly be amended
that is correct, that's not what is being discussed
quote:
so it could be codified and make your rather weak argument a moot point.
my point was that it is doubtful it could be done purely by statute
Posted on 5/3/22 at 1:31 pm to AggieHank86
quote:
If there is no "Constitutional right" to abortion, that does NOT automatically mean that Congress is prohibited from legislating a federal "statutory right" into existence.
Sure, that "statutory right" will conflict with state-level prohibitions in some jurisdictions. More litigation will ensue. The Supremacy Clause is a different can of worms with an entirely different set of standards.
Agreed, and I responded to that in the other thread where you made this point.
Posted on 5/3/22 at 1:44 pm to udtiger
quote:
the language clearly shows that references to "elected representatives" means STATE legislatures.
That didn't keep the Dems from changing "election law" which the Constitution also states as the state Legislatures are given the sole authority to change election procedures. That's is why the 2020 election should be null and void.
Posted on 5/3/22 at 1:44 pm to udtiger
quote:Your post suggests: if the US Constitution does not specify or imply a right to the citizens, then the federal government cannot pass a law concerning that issue.
oh...do enlighten me.
Specified or implied rights found in the Constitution limit the powers of the federal government. Through incorporation, constitutional rights also limit the power of state governments.
The lack of a right means that governmental entities may act if they are so authorized.
The authority granted to the federal government through the Constitution does not depend on the existence vel non of a constitutional right to individuals. It depends on the powers granted to the federal government in the enumerated powers and the necessary and proper clause.
Further, the supremacy clause means that federal laws supersede state laws on the same issue if the power fell within the federal power. And again, the federal power does not depend on the existence of a specified or implied right.
Posted on 5/3/22 at 1:49 pm to Salviati
quote:
Further, the supremacy clause means that federal laws supersede state laws on the same issue if the power fell within the federal power.
there you go. that is the question - one that the "decision" seems to answer.
there has to be a constitutional basis for the exercise of the authority. see Morrison & Sebelius
Posted on 5/3/22 at 1:53 pm to udtiger
quote:
that is the question - one that the "decision" seems to answer.
I doubt that the decision actually answers a question that is not before the court.
quote:
there has to be a constitutional basis for the exercise of the authority.
Well of course.
Posted on 5/3/22 at 1:54 pm to udtiger
quote:The opinion merely states that there is no constitutional right to limit governmental authority to govern abortions.
there you go. that is the question - one that the "decision" seems to answer.
The opinion in no way answers whether there is federal authority to govern abortions.
Even if the opinion discussed federal authority versus state authority, such discussion would be wholly obiter dictum.
Posted on 5/3/22 at 2:10 pm to Havoc
quote:
the issue is that there’s no constitutional protection for it, hence it is left to the states.
exactly correct and always should have been this way. This doesn't "outlaw abortion" like the sky screamers what you to believe. it simply kicks it back to the states since the Fed has no authority.
Posted on 5/3/22 at 2:13 pm to CDawson
quote:
it simply kicks it back to the states since the Fed has no authority.
The decisions does not expressly state this though.
Posted on 5/3/22 at 2:33 pm to UAinSOUTHAL
quote:
The Constitution can certainly be amended so it could be codified and make your rather weak argument a moot point.
Allow me to translate: While you are correct in every conceivable way, if I move the goal posts WAY down here, you wouldn't be anywhere NEAR close to correct.
Yer dumb.
Posted on 5/3/22 at 2:38 pm to udtiger
Just so you know, the DV was not me.
Posted on 5/3/22 at 2:43 pm to AggieHank86
quote:
Just so you know, the DV was not me.
don't sweat it
Posted on 5/3/22 at 2:57 pm to CDawson
quote:You're conflating federal authority with federal rights. That's dumb.
exactly correct and always should have been this way. This doesn't "outlaw abortion" like the sky screamers what you to believe. it simply kicks it back to the states since the Fed has no authority.
For example, there's no federal right to clean air, but the federal government can create Clean Air Act standards, and it can prohibit states from adopting or attempting to enforce clean air standards.
Posted on 5/3/22 at 2:59 pm to Salviati
quote:
there's no federal right to clean air, but the federal government can create Clean Air Act standards, and it can prohibit states from adopting or attempting to enforce clean air standards.
under the guise of interstate commerce
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