Whom do you think is ardently defending an outlandish congressional assault on federalism through an activist interpretation of the commerce clause of the Constitution? The answer is President George W. Bush, who is customarily an exponent of limited congressional power and State's rights. Indeed, in supporting, signing and arguing the constitutionality of the Partial-Birth Abortion Ban Act (PABA) of 2003 in three federal district courts, President Bush is embracing a liberal Democrat theory of congressional power that his judicial nominees and the Rehnquist Court have loudly scorned. He should abandon defense of the act because partial-birth abortions are none of Congress's business, as confirmed by 40 State laws proscribing the procedure.
A Republican Congress enacted the ban by casting aside its ordinary opposition to stretching congressional authority over commerce between the States to pursue a social agenda. The act makes fourteen findings addressing the medical necessity of partial-birth abortions, but is silent on the constitutional foundation for Congress to legislate on the subject. While the law is nominally restricted to "[a]ny physician... in or affecting interstate or foreign commerce...," it is clueless as to how a partial-birth abortion could implicate interstate commercial activity. The United States Supreme Court decisions in United States v. Lopez (1995) and Morrison v. United States (2000), drive a stake into PABA's invasion of a traditional State prerogative.
In Lopez, Chief Justice William H. Rehnquist, writing for the majority, denied that the commerce clause empowered Congress to prohibit the possession of a firearm in a school zone under the Gun-Free School Zones Act. In Morrison, the Chief Justice, again speaking for the High Court, nullified the Violence Against Women Act (VAWA) in its creation of a civil damage remedy for victims of gender-motivated crimes of violence. Congress relied on its commerce clause power to justify the enactment. But Rehnquist repudiated that reliance for threefold reasons: the act did not regulate economic activity; the federal claim contained no interstate element; and, the congressional findings that gender-motivated violence deterred interstate travel and employment and diminished worker productivity pivoted on too thin a violence-commerce nexus to justify the assertion of federal power. He categorically rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."
Republicans in Congress, several of President Bush's star judicial nominees, and the President's own federalism gospel applauded the Lopez and Morrison precedents. They chorused that Democrat Congresses had for too long manipulated the commerce clause to chart a liberal social agenda for the nation at the expense of State's rights. But President Bush and a Republican Congress readily apostatized from their own creed in pursuit of a pet social policy to enact a partial-birth abortion ban.
That law stumbles against the commerce clause infirmities that invalidated the Gun-Free School Zones Act and VAWA. It regulates noneconomic as opposed to commercial activity. Congress made no findings that partial-birth abortions affect interstate commerce, but only that they were unnecessary to protect the health of the mother. Indeed, Congress failed to recite any constitutional authority for its criminalization of partial-birth abortions. And although the law facially targets only physicians whose abortion procedures affect interstate commerce, under Morrison the prohibition is a constitutional nullity because any hypothesized nexus between partial-birth abortions and economic activity traversing state lines would be too attenuated to trigger congressional power.
President Bush should be faulted by authentic conservatives for neglecting to oppose and to veto the partial-birth abortion ban as unconstitutional. From the inception of the nation, presidents have understood the veto power as a device to thwart congressional depredations on the power of coordinate departments of government. President Bush thus sacrificed a bedrock conservative principle at the altar of conservative politics by enthusiastically initialing a law without a crumb of commerce clause foundation.
The Department of Justice customarily declines to defend blatantly unconstitutional statutes like the federal partial-birth abortion ban which fails by miles the commerce clause yardsticks of Lopez and Morrison. Yet the Bush administration has rallied to PABA's defense in three trials that opened concurrently on March 29, 2004, in New York, Nebraska, and California. Constitutional principle succumbed to solidifying the socially conservative electoral base of the Republican Party.
If there are better ways to foster cynicism over President Bush's limited government catechism, they do not readily come to mind.
*Bruce Fein was Associate Deputy Attorney General during the Reagan administration.
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