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The “But Abortion Law Is More Restrictive In Europe” Fallacy Never Dies

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It must be said that the bottom-line argument of Glenn Reynolds’s op-ed is correct: Congress should not pass a statute banning abortion after 20 weeks, and indeed should not be regulating abortion. Alas, much of his defense of the law is as shaky as you would expect from someone who threatened that if Democrats had the temerity to criticize judges who believed that the ACA was unconstitutional Congress might “revist” the possibility of passing anti-abortion statutes that it had already passed and had upheld by the Supreme Court. For example:

One such conflict is likely to appear this week, when the House is expected to vote on a 20-week limit on abortions. Such a limit polls well— Americans are much more supportive of early abortionsthan late-term abortions — and would still leave the United States with more-liberal abortion laws than nearly all of Europe.

This point about Europe’s allegedly more restrictive abortion laws is a common one, and it’s wrong. You can’t just look at the thresholds beyond which greater nominal restrictions apply to abortion in isolation. First of all, to make the effect of term restrictions in the U.S. even remotely comparable to those in Europe you would have to repeal the Hyde Amendment and have every state accept the Medicaid expansion. You would also have to repeal arbitrary state laws making the operation of abortion clinics difficult. And, finally, the relevant European laws generally don’t ban abortion after 12 weeks; they permit them in cases of threats to the life or health of the mother. Just looking at the statute books tells you very little about how these exemptions are applied in practice, and there’s evidently a major difference between how such exceptions will be interpreted by doctors in France and in Alabama.

As I’m sure you’ve already predicted, Reynolds reaches the right conclusion in this case for the wrong reason — namely, that he’d like to restore unworkable Gilded Age understandings of the federal power to regulate interstate commerce:

It’s possible, of course, that the Supreme Court would uphold regulation of abortion under the clause. In the past, it has, absurdly, upheld federal commerce power to punish a farmer for growing too much wheat on his own land, to feed to his own family and livestock, on the ground that if he didn’t grow his own he would be forced to buy the wheat on the open market, which would drive up prices and thus affect interstate commerce.

Wickard v. Filburn was, of course, correct. The regulations in question dealt with collective action problems of the kind the commerce and necessary and proper clauses were designed to address: namely, that individually rational decisions by farmers to grow as much as possible had the collectively harmful effects of lowering prices and degrading the quality of land. Filburn’s exceeding his surplus was inconsistent with both goals, and while of course no one farmer’s actions can affect wheat prices without being able to regulate individual actions it would be impossible to address the problems Congress identified with interstate commodity markets. One can agree or disagree with the wisdom of the policy, but it is permitted by the Constitution.

Still, in this case the appropriate precedent isn’t so much Wickard as Katzenbach v. McClung. Abortion clinics are at least as engaged in interstate commerce as Ollie’s Barbecue was. If Reynolds believes that the Civil Rights Act of 1964 is unconstitutional, he should say so. For those of us who aren’t crackpots, this is an easy case. The proposed abortion ban is terrible public policy and is also unconstitutional, but it is not unconstitutional because it exceeds the power of Congress to regulate interstate commerce.

With the bar set that low — and with liberal abortion-rights justices being fans of broad government power, while conservative limited-government justices oppose abortion — there’s a good chance that the law would pass Supreme Court scrutiny, whether it really ought to or not.

This is a very odd formulation. It is true, for the reasons I’ve stated, that none of the liberal justices would be likely to find that the statute exceeds the federal commerce power, but since this statute is straightforwardly inconsistent with Casey all of the liberal justices would find that it violates the Fifth Amendment, so it’s beside the point. There’s no both-sides-do-itism here; if the statute is upheld, it would be because 5 justices who sporadically pretend to care about federalism don’t really. (In Justice Scalia’s case, there’s no doubt at all — his interest in federalism ends when there’s any clash with his policy preferences.)

But the fact that nobody really cares about federalism shouldn’t be news. The fact that House Republicans have already passed a nearly identical bill once and probably will again should make this point abundantly clear.

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  • Brett

    You’re right about Republicans and federalism – federalism is just a tactic for them. If they ever do manage to get the fundamental ground created by Roe flipped, you can bet they’ll abandon any notion of states’ rights on the matter and push for a federal abortion ban. It’s almost enough to make me wish they’d just keep the filibuster and dysfunctional government, for the time when Republicans win the Senate along with the other stuff.

    Is it bad that I just want the Supreme Court to fucking rule on this already, along with all the TRAP bullshit that Republicans have been obstructing the right to abortion with? It sucks having to deal with wave after wave of model bills that the national anti-choice organizations keep shitting out, each one a costly, time-consuming legal fight.

    • Murc

      The Supreme Court has ruled on a lot of this stuff. Very recently too; Casey was twenty-three years ago, an eyeblink in Supreme Court time, and four of the justices involved in that ruling are still on the bench.

      The problem, such as it is, is that a lot of the country is deeply hostile to abortion access, and a shit-ton of judges on lower courts agree with the legal arguments that allow both the states and the feds to ban it.

      When you have a situation like that, there’s going to be a constant, unending low-grade war.

      • Brett

        More specifically, it’s a single court – the 5th Circuit Court of Appeals – that has gone against the trend. Most of the other Circuit Court of Appeals have thrown out TRAP laws.

        • Joe_JP

          Casey actually allow TRAP laws but Republicans are getting so blatant that lower courts are starting to draw the line.

    • jim, some guy in iowa

      i would assume until there are no legal abortions allowed whatsoever there’s going to be these stupid model bills coming down the pike

      • Brett

        I’m not so sure. If we somehow had a Supreme Court ruling that threw out a ton of the TRAP regulations and instituted a high evidence standard for them, then that would really set them back.

        Even just striking down some of the more serious ones would help, like if they nixed the “admitting privileges” and “ambulatory surgical center” requirements on clinics, and basically said outright that states couldn’t rely on the availability of abortion in nearby states as proof that there’s no undue burden.

        Of course, that doesn’t seem likely. At least three of the Supreme Court justices are definite yes votes on nixing any right to an abortion, and another two are maybe-to-yes (Roberts and Kennedy).

  • Aimai

    I wish I could find the angry LTE I wrote about Mary Ann Glendon’s execrable book and op ed on this subject. What a liar that woman is. But its basically all about this: a complete misreading of non US laws on abortion.

    • Scott Lemieux

      Yeah, Glendon’s book was a classic of beginning and ending an inquiry by looking at formal statutory language.

    • MAJeff

      She and Bobby George are really worthless theocratic hacks masquerading as serious legal scholars.

  • Murc

    Is it wrong that Wickard makes me uncomfortable?

    It’s like… as a matter of policy, of course the federal government should be able to regulate basically all commerce, everywhere, because federalism is a stupid goddamn idea.

    But as a matter of what’s actually written down, it seems like Wickard actually destroys the commerce clause entirely by essentially re-defining all commerce, or indeed acts that are not commonly regarded by the populace as commercial in nature at all, as interstate commerce.

    That troubles me, not because it is bad policy (and it isn’t like Wickard has led to the government telling my mom she can’t grow a tomato garden anymore because she’s engaged in commerce, or indeed seemed to have practical deleterious effects) but because I generally get real real nervous when people do clever boots Constitutional end-runs. For example, I forsee that in my lifetime the 4th Amendment will eventually become a dead letter because some enterprising Solicitor General will argue convincingly that in the Forever War on Terror, ANY search and seizure is by definition “reasonable.”

    • politicalfootball

      You’re imagining a slippery slope where none exists. The Supreme Court’s sensible ruling in Wickard will have absolutely no impact on 4th Amendment jurisprudence.

      Literal Constitutionalism is like Biblical literalism — its adherents are interested in the actual text only to the degree that it supports their prejudices. Can you tell me some plausible ‘strict constructionist’ basis for Shelby (the Voting Rights Act decision)?

      • Murc

        You’re imagining a slippery slope where none exists. The Supreme Court’s sensible ruling in Wickard will have absolutely no impact on 4th Amendment jurisprudence.

        … I in no way said or implied that it would.

        Literal Constitutionalism is like Biblical literalism — its adherents are interested in the actual text only to the degree that it supports their prejudices. Can you tell me some plausible ‘strict constructionist’ basis for Shelby (the Voting Rights Act decision)?

        Your first sentence is quite true, and the answer to your question is “I cannot.” I’m not sure how that paragraph was germane, but there you go.

        • politicalfootball

          I guess I was misreading how you relate the “Constitutional end-run” of Wickard to your hypothetical 4th Amendment case. You seemed to be connecting the two somehow, but apparently I misread that connection as a slippery slope.

          In any event, they aren’t connected in any substantive way – they are not both “Constitutional end-runs” in any sensible interpretation of that phrase.

          • troll

            politicalfootball doesn’t want to fuck you Jennie.

            • Murc

              … this is actually me, Mal, not Jennie. You know me! You helped me with my insurance stuff a few months ago!

              Admittedly I’m taking a very heterodox position here, but I’d like to think I’m not using Amity Shlaes-esque language to do it with.

              EDIT: Oh, wait. This became a meme while I was eating lunch.

              I suppose I should have read the entire thread.

              • dilan

                It’s worth noting that among many constitutional lawyers and law professors I know, Wickard and Raich are a joke.

                That’s not to say they don’t have their defenders. But the criticism of their holdings, including among left-wingers, is not uncommon or heterodox at all. There’s plenty of people who think that they were a huge stretch.

                The other thing I will say about Wickard is that even if you support it, the people posting about how “sensible” it all is are just lying or stupid. It is not “sensible”. It’s a huge stretch. You are basically saying that anything someone grows on their own property for their own personal use constitutes “commerce among the several states”. There IS an argument for why that must be true, based on aggregation and collective action issues. But it’s not “sensible”. It’s a lawyer’s argument based on hypotheticals and stopping points and the rest.

                One reading the Constitution for the first time would never conclude that the commerce clause reaches food you grow for your own use on your own property. It just isn’t among the several states and isn’t commerce. Wickard was the result of some real history, and I don’t deny it, but it wasn’t “sensible” at all. It is closer to Seminole Tribe’s interpretation of the Eleventh Amendment– a “despite the obvious meaning of the words here, we have structural and historical reasons for making a counterintuitive conclusion” argument.

                • Scott Lemieux

                  It’s worth noting that among many constitutional lawyers and law professors I know, Wickard and Raich are a joke.

                  It’s amazing how all of the countless liberal law professors who share your neoconfederate views always go uncited.

                • liberal

                  That’s not to say they don’t have their defenders. But the criticism of their holdings, including among left-wingers, is not uncommon or heterodox at all. There’s plenty of people who think that they were a huge stretch.

                  So? Tribe (for example; don’t know his position on this topic) is a well-known con law prof, nominally even a very liberal one, and he’s such an asshat he can’t even read the Second Amendment without discarding its first half. Not to mention his whoring for Big Coal described in this blog. So your appeal to authority is just nonsense.

                • dilan

                  liberal:

                  I’m not appealing to authority. I’m ANSWERING a post that said that criticizing Wickard is heterodox. It isn’t. Lots of people criticize Wickard.

                • Scott Lemieux

                  Lots of people criticize Wickard.

                  This is not, of course, in any dispute. There are in fact plenty of people who would like much of the 20th century regulatory state to be ruled unconstitutional. Your claim was that criticism of Wickard is orthodox among left-wing legal scholars, which is just pure bullshit.

            • tsam

              GR8 B8 M8. R8 8/8

          • Murc

            How not?

            That’s not meant to be a rhetorical question. In my mind, if growing food you do not intend to sell, or even give away, is defined as “interstate commerce” then that means that damn near anything is. Most people, I think would look at you funny if you told them that having a vegetable garden meant they were engaged in a commercial act that crosses state lines.

            Given that the constitution makes a distinction between intra-state and interstate commerce, there must surely be things that fall into the latter category, but if something as anodyne as “growing food you don’t intend to offer for sale at all” doesn’t I’m having trouble seeing what does.

            And that troubles me, because it seems like what went down in Wickard is basically that a very good policy position was cockblocked by the constitution, so a way was found to simply get around it by playing language games.

            I don’t like it when that happens regardless of the merits of the policy in question.

            • Xenos

              Think of it this way: the farmer wanted to profit from the limitations on growing corn – he wanted the limitations to exist (to keep the price high enough), but he just did not those limitations to apply to him.

              In order to achieve his aim he sold his corn by passing it through the digestive track of animals, which he then sold, at a high profit due to his not paying market price for his grain. This is a classic free-rider situation.

              Since the grain-selling restrictions were clearly constitutional it is a very small step to conclude that restrictions on grain-selling by way of feeding to your animals is constitutional, too.

              Or to use a popular federalist argument, if Congress wanted to clearly limit the law so that it did not apply to this situation, they could have done so. There have been what, 40 congresses since W v. F, and they have not bothered with it yet, so it can not be that far from Congress’s original and ongoing intent.

              • Murc

                This logic makes sense to me, but unless he was selling that beef across state lines, I still don’t see how he’s engaged in interstate commerce.

                (And to reiterate, nothing personal to you Xenos but only because this comes up every time I express my Wickard skepticism; of course the sorts of regulation at question in Wickard are sound public policy that should be in the hands of the federal government, and the fact that it is was legal question at all is indicative of the fact that our federal system is shittily designed.)

                • Scott Lemieux

                  , but unless he was selling that beef across state lines, I still don’t see how he’s engaged in interstate commerce.

                  Maybe I should do a post on this, but I think this framing is the key mistake you’re making. The question is not exactly whether Filburn is engaged in interestate commerce but whether the regulatory framework is a regulation of interstate commerce (which it plainly is.) You’re positing an argument in which plenary federal powers to regulate an interstate market cannot be applied the individual cases necessary to make the regulation effective, which is nonsensical. And, in addition, when Filburn grows wheat so he doesn’t have to buy it he is in fact affecting the interstate market for the commodity.

                  This is also one of many reasons why your Fourth Amendment slippery slope is a non-sequitur. Individual liberty interests are different than interpreting affirmative grants of power, and the checks that restrain Congress do no constrain most of the actors most likely to violate Fourth Amendment rights. The fact that there’s a strong correlation between people who narrowly construe the commerce power and people who narrowly construe the Fourth Amendment should make it obvious that there’s no real relationship between the arguments.

                • Murc

                  The question is not exactly whether Filburn is engaged in interestate commerce but whether the regulatory framework is a regulation of interstate commerce (which it plainly is.)

                  See, this seems very… end-runny to me. If you craft a regulatory framework for interstate commerce, as is clearly in Congress’ power, then clearly activities that don’t fall within the boundaries of interstate commerce also do not fall within that regulatory framework, yes? No?

                  And, in addition, when Filburn grows wheat so he doesn’t have to buy it he is in fact affecting the interstate market for the commodity.

                  This is the part I have a real problem with, because that logical construction seems to me to have the practical effect of defining second or third order activities that are not considered by most people to be at all commercially in nature as not only commercial, but commercial on an interstate level. By this definition I am engaging in interstate commerce if I plant a blackberry bush in my backyard, and that seems insane to me.

                  This is also one of many reasons why your Fourth Amendment slippery slope is a non-sequitur.

                  How so?

                  If clever language can be used to eviscerate one part of the constitution, why can it not be used to eviscerate other parts?

                  I mean, hell, that happens all the time already; I forgot the actual case, but I seem to recall that a judge has held that, if you are a passenger in a car that has been pulled over by the police, a “reasonable person” would consider themselves free to simply kick open the door and amble on down the highway. That’s using clever language games to define things away, is it not?

                • Scott Lemieux

                  If you craft a regulatory framework for interstate commerce, as is clearly in Congress’ power, then clearly activities that don’t fall within the boundaries of interstate commerce also do not fall within that regulatory framework, yes? No?

                  No. Filburn is a classic example of this. Congress has the powers necessary to make its regulation of interstate commerce effective. Filburn did not have an independent liberty interest here.

                  This is the part I have a real problem with, because that logical construction seems to me to have the practical effect of defining second or third order activities that are not considered by most people to be at all commercially in nature as not only commercial, but commercial on an interstate level.

                  Well, yes, in a modern economy it doesn’t make a lot of sense to make distinctions between “local” and “interstate” commerce. That doesn’t make it a good idea to place arbitrary limits on the commerce power so we can pretend that it’s 1790 again.

                  If clever language can be used to eviscerate one part of the constitution,

                  You’re begging the question, of course. For reasons stated in the OP the regulation in question was a regulation of interstate commerce, so the “evisceration” is not happening. And, again, the fact that people with a broad view of the commerce power are also much less likely to eviscerate the Fourth Amendment is pretty much checkmate for your argument.

                • Xenos

                  The vast majority of beef has been sold over state lines since the introduction of the railroad.

                  This is exactly how the commerce clause works. As interstate commerce eclipses intrastate commerce, federal jurisdiction follows automatically. Nature and and federal law abhor a vacuum.

                • Lee Rudolph

                  As interstate commerce eclipses intrastate commerce, federal jurisdiction follows automatically. Nature and and federal law abhor a vacuum.

                  But they just lurves them a penumbra!!!

            • Hogan

              Given that the constitution makes a distinction between intra-state and interstate commerce, there must surely be things that fall into the latter category, but if something as anodyne as “growing food you don’t intend to offer for sale at all” doesn’t I’m having trouble seeing what does.

              See US v. Lopez and US v. Morrison for examples. That slope isn’t as slippery as you think.

              • Xenos

                Fucking Morrison. Really pisses me off.

    • TROLL

      Don’t worry about that the liberal courts want the terrorists to win.

      • Malaclypse

        As always, Jennnie, I won’t ever fuck you, no matter how often you moan my name.

      • tsam

        H ELLO AM 48 YEAR MAN FROM SOMALIA. SORRY FOR BAD ENGLAND. I SELLED MY WIFE FOR INTERNET CONNECTION FOR PLAY "hearth stone" AND I WANT TO BECOME THE GOODEST PLAYER LIKE YO U

    • drunk, confused troll

      Murc doesn’t want to fuck you Jennie

      • Malaclypse

        It would be tragic if Jennie’s nym got changed by our hosts to “Someone Who Wants Mal To Fuck Him, And Is Very Frustrated”

    • rea

      it seems like Wickard actually destroys the commerce clause entirely by essentially re-defining all commerce, or indeed acts that are not commonly regarded by the populace as commercial in nature at all, as interstate commerce.

      Wickard, on the contrary, has a very sensible, market based analysis of what constitutes “interstate commerce.” A fungible product sold in a national or global market is, of course, in “interstate commerce” without regard to whether particular examples of that product ever cross state lines. For example, General Widget has to follow federal product safety regulations on all the widgets it manufactures, not just on the widgets that aren’t sold to residents of the state in which their plant is located.

      • Murc

        Are blanket safety regulations promulgated at the federal level justified under the commerce clause? I had always thought those came under “general welfare.”

        • Scott Lemieux

          Uh, no. The general welfare clause can justify spending but not regulatory programs. Which, to be clear, means that the Murc/Esper/Thomas/Adler/Barnett Constitution would threaten most of the contemporary regulatory state.

      • dilan

        Wickard, on the contrary, has a very sensible, market based analysis of what constitutes “interstate commerce.” A fungible product sold in a national or global market is, of course, in “interstate commerce” without regard to whether particular examples of that product ever cross state lines.

        Wickard is not sensible at all.

        It’s true that a fungible product sold in a national global market is “interstate commerce” even the particular article never crosses state lines. So the government wouldn’t have to prove that the wheat that Filburn SOLD crossed state lines.

        The problem is that a fungible product that is NEVER BOUGHT OR SOLD isn’t “commerce among the several states” at all.

        Fundamentally, Murc got it right. Growing tomatoes for your own use in your own garden isn’t commerce at all. Neither is feeding it to your own hogs. Wickard sustained a dumb law on a dumb rationale.

        • Scott Lemieux

          Fundamentally, Murc got it right. Growing tomatoes for your own use in your own garden isn’t commerce at all.

          Of course it is (leaving aside the fact that the right question is whether the regulatory framework applied to Filburn’s case is a regulation of interstate commerce.) You’re using an anachronistic, Gilded Age definition of “commerce” that was utterly unworkable then and would be unworkable if it was resuscitated.

          • Murc

            You’re using an anachronistic, Gilded Age definition of “commerce” that was utterly unworkable then and would be unworkable if it was resuscitated.

            This is the part I keep getting hung up on, Scott. The definition of “commerce” at work here just seems… well, batshit insane to me as a matter of pure common sense.

            I’m not trying to be deliberately obtuse here, it’s just that every language-use instinct I have looks at the work the word is being made to do here and is screeching “No, that’s not right, it’s a perversion of the language.”

            • Scott Lemieux

              well, batshit insane to me as a matter of pure common sense.

              The attempts by Gilded Age reactionaries to define “commerce” as merely “trade” were very successful. But it’s not right, and the attempts to put the definition into practice was a disaster and would be a disaster if tried again.

              • burnspbesq

                I call. Explain why it’s “not right.” Simply asserting it doesn’t make it so.

                The most sensible Commerce Clause opinion of our time is Scalia’s concurrence in Raich, which he somehow managed to forget about when it came time to decide NFIB v. Sebilius.

                • Scott Lemieux

                  John Marshall does so at the link.

            • A farmer who grows wheat for market plus other products for market from that wheat can’t be regulated in his activity growing wheat in exactly the same manner because he claims it’s for home consumption? When it materially affects the amount of wheat he can sell?

              Doesn’t seem a pervasion to me at all.

          • dilan

            Scott:

            It would help your argumentation if you actually made an argument. Saying “gilded age” is a fun rhetorical mantra, but it isn’t an intelligible argument.

            If what you mean to say is that I am taking the position of the (post-Gilded Age, actually, but you obviously don’t care about history when you throw out that line, you just think it sounds good) case of Hammer v. Dagenhart, no, I am not.

            The “manufacturing isn’t commerce” argument was a bad one– that you could own a factory that was producing goods which the owner then sold in interstate commerce, but somehow the factory was not engaged in “commerce among the several states”.

            But that has NOTHING to do with Wickard, which says that a PLANT (not manufactured goods) that you grow on your own property, do not sell, and do not inject into the stream of commerce could be aggregated with the growing of other plants by other people to constitute “commerce among the several states”.

            Those are just two completely different arguments. Now, would you please stop uttering the meaningless phrase “gilded age” and actually try to make an ARGUMENT as to why one is exactly like the other? I thought you couldn’t.

            • But that has NOTHING to do with Wickard, which says that a PLANT (not manufactured goods) that you grow on your own property, do not sell, and do not inject into the stream of commerce could be aggregated with the growing of other plants by other people to constitute “commerce among the several states”.

              Wait…it matters that it is a PLANT!!!!??!?! I mean, if I knit my own socks, well, that sucks for me? Huh?

              Filburn was a farmer. Part of his farming activities was growing wheat. Wheat that he sold. Wheat that he fed to animals that he sold. This isn’t someone with a home garden with tomatoes. This a person who has the profession of being a farmer. AFAICT, he didn’t grow this wheat in a garden like way, but in a farmer like way.

              The appellee for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry, and selling poultry and eggs. It has been his practice to raise a small acreage of winter wheat, sown in the Fall and harvested in the following July; to sell a portion of the crop; to feed part to poultry and livestock on the farm, some of which is sold; to use some in making flour for home consumption; and to keep the rest for the following seeding. The intended disposition of the crop here involved has not been expressly stated.

              We don’t even KNOW what he was using the wheat for?!?

              The general scheme of the Agricultural Adjustment Act of 1938 as related to wheat is to control the volume moving in interstate and foreign commerce in order to avoid surpluses and shortages and the consequent abnormally low or high wheat prices and obstructions to commerce. 5 Within prescribed limits and by prescribed standards the Secretary of Agriculture is directed to ascertain and proclaim each year a national acreage allotment for the next crop of wheat, which is then apportioned to the states and their counties, and is eventually broken up into allotments for individual farms. 6 Loans and payments to wheat farmers are authorized in stated circumstances. 7

              So, I mean, there are a lot of things going on, right? Like loans and subsidies? Which affect prices? Which are national? And funded by national taxes?

              In answer the Government argues that the statute regulates neither production nor consumption, but only marketing; and, in the alternative, that if the Act does go beyond the regulation of marketing it is sustainable as a ‘necessary and proper’15 implementation of the power of Congress over interstate commerce.

              So, if YOU ARE A FARMER WHO GROWS WHEAT for sale on the open market (and indirectly through other open market stuff), your overall production of wheat might be regulated more tightly than some random person with a garden? This seems not bonkers to me. And, well, they could just ratchet down the quota, right? If the dude grew X extra wheat for “home consumption” so he could sell all of his quota Q instead of Q-X like everyone else, can’t we just make his quota Q-X? And if we can do it that way…what’s wrong with doing it the simpler way?

              I am not a lawyer!

            • Scott Lemieux

              post-Gilded Age, actually, but you obviously don’t care about history when you throw out that line

              This would be a great gotcha if Hammer was the first of that line of cases. Of course, it wasn’t.

              And actually try to make an ARGUMENT as to why one is exactly like the other?

              The argument is in the original post.

            • Mark Field

              As I’ve pointed out before (at Balkinization), Dilan is missing 2 key points. One is the N&P clause, under which regulation of the farmer’s wheat is both necessary and proper to the regulation of interstate commerce (for the reasons set forth in both the OP and in various other comments).

              The other is that the original purpose of the commerce clause (combined with the N&P clause) was to enable Congress “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation…” Since the individual states are, by definition, incapable of regulating the interstate market for wheat, Congress is the proper body to do so.

              • Joe_JP

                The second part is a bit too much. Art. I enumerates powers. It doesn’t have a catchall “anything states can’t handle” provision. The “regulating the interstate market” part is key.

                Bijan does a good job here. Wickard is just not that hard of a case on the Commerce Clause alone; with the N/P, it is just not hard at all.

                • Mark Field

                  If you’re looking to the original purpose of the list of powers in Art. I, Sec. 8, then you have to understand their origin in Resolution VI: that Congress should have power “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation”.

                  The whole point of the Committee of Detail was to convert that general principle into details. Thus, James Wilson at the PA Convention: “On this point a general principle readily occurred, that whatever object was confined in its nature and operation to a particular State ought to be subject to the separate government of the States; but whatever in its nature and operation extended beyond a particular State, ought to be comprehended within the federal jurisdiction.”

                  Any interpretation of the Commerce Clause (or, indeed, any other granted power) has to account for the basic purpose pursuant to which powers were granted.

    • Brett

      EDIT: Never mind.

  • Yankee

    Nobody HERE cares about federalism, as the inevitable snarking at any use of “States’ Rights” language shows.

    But actually, Federalism proceeds apace at the next level up: we are about to federate with 13 (or so) transpacific states. We are even seen to be willing to federate with Cuba, if only they get some folks in down there who can think rationally.

  • nostack

    [trying to delete this, sorry]

  • Roger Ailes

    It must be said that Glenn Reynolds is a piece of sh*t.

    • CP

      The only thing I know about Glenn Reynolds is that my wingnut uncle referred him to me as the definition of sensible and nonpartisan thinking, the guy he goes to when he needs a Loyal Opposition viewpoint from someone who’s not a conservative.

      Given my uncle’s judgment in political matters, I considered that a big flashing neon sign to disregard anything Glenn Reynolds had to say.

  • Salem

    Congress claimed constitutional authority for the CRA of 1964 under the Commerce Clause, true, but also under the 14th and 15th amendments. A restrictive reading of Commerce Clause power doesn’t necessarily invalidate it.

    • pathetic, flailing troll

      Salem doesn’t want to fuck you Jennie.

      • tsam

        ALL THESE FLAVORS AND YOU CHOSE TO BE SALTY

    • Scott Lemieux

      Perhaps Reynolds is one of a tiny handful of people who narrowly construes the commerce power but broadly construes enforcement powers under the Reconstruction amendments. I know how I’m betting.

  • Buckeye623

    Anything’s more restrictive than Europe – if you’re not persistent enough to actually verify the assertion.

    I don’t understand how Europe justifies anything.. I thought Republicans were reflexively against all things European. Now Europe is a source of some comparison?

    • sharculese

      Because ferreting out imagined examples of liberal hypocrisy is the bedrock principle of modern conservative argumentation. It will come as no shock that the explanation is projection. “We believe a million contradictory thing, so they must as well.”

    • Hogan

      “Even the liberal Europe . . . “

      • tsam

        I believe it’s “OLD” Europe now, since most were too sissy to help us invade Iraq.

        Edited out some comma abuse…

  • Owlbear1

    The existence of so many model trains sets proves America has much more high speed rail than any other country on Earth.

    • Owlbear1

      And all those street signs with directions to a Hospital are proof that universal healthcare already exists in America as well.

  • DrDick

    And this, ladies and gentlemen, is the esteemed Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee. He teaches constitutional law. Can the students there sue for fraud?

  • TROLL

    The Constitution doesn’t say anything about Abortion, like with queer marriage the courts should stay out of it. If states want to criminalize abortion they should be able to, if states want to fund abortion they should also be able to.

    • jim, some guy in iowa

      how d’ya feel about the fact the founders didn’t want a standing army and yet we’ve got the biggest one ever? do you think you’ll go to hell for disobeying them?

      • The founders didn’t want a standing army. They also didn’t want the army to be able to bunk down in our homes. Apparently, they wanted the army to be sitting.

        • Hogan

          Or lying. Which, you know, happens.

    • sharculese

      I know your brain is feeble and easily distracted, which is why you’re only capable of comprehending things you’re told explicitly, but we’re not burdened with the same cognitive impairment. We can do this thing called making inferences, and we’re gonna keep doing it no matter how much of a baby you insist on being about it.

    • rea

      It does not mention an Air Force, either.

      • witlesschum

        Or Jesus.

        • tsam

          WHOA! What are you trying to do? Cause a tsunami or terror attack??

          • witlesschum

            Terrorsharknami.

      • notahack

        Let’s abolish the Air Force!

        I am not a quack.

    • tsam

      (\ ( ͠° ͟ل͜ ͡°) /) OUR DONGERS ARE RAZOR SHARP (\ ( ͠° ͟ل͜ ͡°) /)

    • ema

      If states want to criminalize abortion they should be able to….

      Why should legislators be able to criminalize one of the most safe and effective medical procedures available?

  • ThrottleJockey

    You can’t just look at the thresholds beyond which greater nominal restrictions apply to abortion in isolation.

    Shorter Lemiux: Don’t believe your lying eyes.

    While its true that their national health care systems means that early term abortions are more readily available over there than over here, this doesn’t magically increase the length of time available to legally have an abortion. In fact the abortion rate of the US (16.9 per 1000) is comparable to the abortion rates of Western and Northern Europe (12 abortions per 1000 women and 17 per 1000 women respectively).

    This is a lousy argument unless you’re suggesting that the pro-choice lobby should trade later term abortions for broader access.

    • troll

      ThrottleJockey doesn’t want to fuck you either Jennie.

      • Malaclypse

        It saddens me that you can’t find genuine love with a man who’ll love you back, Jennie, it really does. I’m happily taken, but there must be someone out there for you, if you can just drop the anger and self-hatred.

        • Keaaukane

          Well, to be fair, you can’t really blame Jennie for being smitten by you. He’s only human.

          • Hogan

            As far as our current testing can determine.

      • tsam

        aRSON NO SEXy

    • Craigo

      Abortion rates =/= abortion access. The availability or lack of contraception heavily influences the number of unwanted pregnancies. Policies regarding parental leave, day care and children’s health also, likely.

      The relevant statistic is the number of women who want to terminate the pregnancy and can do so, not how many do so overall.

    • witlesschum

      Actually, I think it does magically increase the time available, in that you don’t have to spend a bunch of your time jumping through hoops devised to harass and punish you while just barely passing constitutional muster, waiting periods, having to travel far away, etc. Or spend time saving up enough money, if it’s covered by socialized medicine. Am I missing something?

      • GFW

        Not missing anything. You’ve nailed the point point of all the hoop jumping laws.

  • dilan

    By the way, I think federal abortion legislation plainly violates the Commerce Clause (though not current Commerce Clause doctrine), at least when applied to clinics who do not market their services across state lines. And I would have no problem with the Supreme Court overturning Raich and so holding.

    • Scott Lemieux

      So McClung was wrong and the Civil Rights Act was unconstitutional? Good to know!

      • Hogan

        You just don’t understand–liberals and leftists want completely different things.

        • Scott Lemieux

          True — real leftists want the same things as Michael Cannon, amazingly enough.

    • Mark Field

      Under current Supreme Court doctrine, Congress has the power to regulate hospitals. See Hospital Building Co. v Trustees of Rex Hospital. The same arguments would apply, pretty easily, to abortion clinics. But if you want to argue that 40 year old unanimous decisions are wrongly decided, good luck.

  • Joe_JP

    Justice Thomas actually voted in dissent in the medicinal marijuana case & some lower court judges are more consistent federalists here. And, some Republicans actually are serious there when it comes to marijuana. They passed a law involving funding that protected local option in a significant way.

    But, yes, wouldn’t trust them. If Scalia/Thomas was serious, they easily could have pushed the justices to have the Commerce Clause issue be one of the questions presented in the abortion case. The law could have been struck down 6-3 based on different grounds. Anyway, there are various ways the feds can regulate abortion like funding (Hyde Amendment), special cases (D.C., military, prisons) etc.

    As to Wickard, this would be worse — there, we were talking about the regulation of wheat that was part of the national market to address current economic conditions. A few people might not like the ruling, we saw that from past comments, but it’s a sensible one. Here, people want to single out one procedure. Yes, there is basically a national market here too, but the reason to ban it is blatantly moral. When that was done for civil rights, there was a clear connection to economic activity regarding things like blacks traveling.

    So, this is weaker than even Ollie’s Barbecue though like the feds regulating marriage in respect to federal benefits, sure, I think the Commerce Clause probably will reach to uphold the “pain prevention act” or something. But, a reasonable line could be drawn just like ACA was obviously okay though not every New Deal program might be.

    • Scott Lemieux

      Justice Thomas actually voted in dissent in the medicinal marijuana case & some lower court judges are more consistent federalists here. And, some Republicans actually are serious there when it comes to marijuana.

      I agree that on issues of minor importance Thomas (although not Scalia) will sometimes vote federalism rather than his policy preferences. Abortion isn’t one of those issues.

      • Joe_JP

        Okay with a but. Some don’t think being able to use medicinal marijuana is “minor.” Scalia is sometimes consistent too. You say this yourself when comparing him to Alito.

        • Scott Lemieux

          I’m not saying minor to me; I’m saying minor to the judge. I doubt that Thomas particularly cares whether medical marijuana is illegal.

          • Joe_JP

            okay — the wording could have been taken both ways. I honestly don’t know with Thomas. He has voiced his distaste about abortion already but he’s such a true believer in respect to the Commerce Clause, that who knows.

            • mds

              He has voiced his distaste about abortion already but he’s such a true believer in respect to the Commerce Clause, that who knows.

              Well, in his Gonzales v. Carhart concurrence upholding the Partial-Birth Abortion Ban Act, Thomas explicitly punts on the Commerce Clause issue. So I don’t have any trouble inferring that he’d gladly use the Commerce Clause as a hammer to destroy abortion rights. He already had his chance back in 2007, and thought making the exercise of abortion rights more punitive was more worthwhile.

              He also rode to the rescue of reactionary Christian authoritarians in Greece v. Galloway, to the point of writing a separate opinion denying the incorporation of the Establishment Clause against the states. Note that the Second Amendment is totes incorporated, according to him (McDonald v. Chicago), so the difference is suggestive.

              • Joe_JP

                The Commerce Clause wasn’t at issue in the abortion case; him bringing it up was unnecessary. If anything, gives a smidgen more respect to the possibility of using it.

                His out there view on the EC didn’t change anything. He didn’t really “ride to the rescue” there. They won either way. The 2A very well might be applied that way but at the end of the day his EC views don’t do much. Scalia gets to the same place religion-wise w/o them.

  • liberal

    You can’t just look at the thresholds beyond which greater nominal restrictions apply to abortion in isolation.

    I remember first seeing that point made in the first or second issue of The American Prospect. Man, that magazine’s first few issues were awesome.

  • Joe_JP

    It might not be a good idea to say how “stupid” people are for defending Wickard and summarizing it this way:

    You are basically saying that anything someone grows on their own property for their own personal use constitutes “commerce among the several states”

    This isn’t actually what Wickard and Raich “basically says.” As noted in Wickard, even the farmer there didn’t merely use it for “personal use” but partially for sale purposes. And, even if it was purely private use, the government can protect interstate commerce by basically taxing competition. That is the “interstate commerce” that is being regulated. As Scott noted, we have to look at the complete regulatory program at issue. There is a significant interstate commerce in wheat that was regulated.

    And, the overall policy generally regulated not “personal use” but people who sold for profit. If anything, he had a possible as applied claim. Raich also involved something for which there was a great interstate/international market. Medicinal marijuana is not merely for “personal use” but is a large industry. Again, it might be possible that a few cases of single growers (though even there, most get the medicine not from their own farms but third parties) should win as applied challenges.

    It is “silly” to say otherwise.

  • tsam

    Did I miss something or is there really a troll who named himself “troll”?

    • Hogan

      I think Erik is practicing some truth in labeling.

      • tsam

        Oh, nice. Easier target acquisition since I’m a Navy Seal and all.

        • Hogan

          We’re all about supporting the troops here.

        • MAJeff

          Can you go back in time and take out the grand-trolls for us? Please?

          • tsam

            I sure wish. For now it’s random copy-pasta or grilled cheese recipes.

      • djw

        Twas I. I generally don’t bother but when he impersonates another poster, however implausibly, the name gets changed.

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