In a decision that is causing shock waves in the media, a federal District Court has found unconstitutional on federalism grounds a statute banning female genital mutilation ("FGM"). (I am uncomfortably reminded of the Supreme Court’s prior blithe dismissal of of an admittedly meritorious death penalty appeal with the blithely bloodless opening line, “This is a case about federalism”)
The District Court decision and Ilya Somin’s defense of it do not, to my mind, bear close scrutiny.
The federal government put forward two arguments for the constitutionality of the statute: first, that the statute fell within the scope of Congress's power under the Commerce Clause, and, second, that the statute was enacted in fulfillment of the ratified treaty, the International Covenant on Civil and Political Rights. Tellingly, the District Court admits "that it may invalidate a federal statute “only upon a plain showing that Congress has exceeded its constitutional bounds, and that the lack of constitutional authority to pass the act in question must be clearly demonstrated.” (Decision at 3, citations and Court's quotation and editing marks omitted).
The Somin post, like the decision, is based on the assumption that FGM is, as the District Court held, a purely local, intrastate crime, a factual assumption belied by the very facts of the case before the court, in which several of the the victims were brought across state lines to undergo the procedure.
Somin acknowledges that the court “potentially misses a key point. To the extent that FGM targets almost exclusively girls rather than boys, and the practice is the result of ingrained sexism in the societies that engage in it, it seems likely that banning really does help ensure that girls get the "measures of protection" needed by minors on par with boys [under the International Covenant on Civil and Political Rights]. The connection between FGM and gender-based discrimination against girls is much stronger than Judge Friedman suggests.” But he falls back on the District Court's false description of FGM as a “purely local crime” to find the treaty doesn’t apply, again due to federalism. Critically, the opinion itself notes that “The government alleges that four of the victims are residents of Michigan, three are residents of Illinois, and two are residents of Minnesota,” so one can hardly see how the "purely local crime" rationale applies to the facts of this case.
Moreover, the court makes no findings as to whether the clinic or doctors accepted a fee for performing the FGM, which is kind of critical in an interstate commerce determination where the interstate nature of the transaction is clear as to 5 of the 9 victims.
It is true that the Rehnquist Court did radically rewrite federalism limitations, and, as Roberts is a Rehnquist protege, he could push to do so even more. But my position is pretty simple: even if the statute’s constitutionality doesn’t extend to “purely local crimes,” (that is, violations purely within the geographical boundaries of one state) the interstate dimension of the case at bar would render that argument inapt as to this case.
Under the Court's and Somin's logic, the long-standing, Supreme Court-affirmed Mann Act would be unconstitutional. The Supreme Court held to the contrary in 1914, and that decision remains good law today.
One can hope that this decision is reversed, as it should be, under long-standing Supreme Court precedent, but if we've learned one thing about the Roberts Court, it's that consistency and stability in the law are not afforded a high value in its stochastic holdings.