Comments on: Government sees new need for abortion ruling

By: Moappeals

Moappeals — Thu, 16 Feb 2006 16:59:41 +0000

I can’t recall ever seeing another filing by the SG’s office that bore only the SG’s name. What might be the significance of that choice?

TG responds: actually the SG alone signs reply briefs and supplemental briefs at various stages of cases.

By: The NJ Annuitant

The NJ Annuitant — Wed, 15 Feb 2006 16:19:51 +0000

Simon — I was not arguing with your point, but was trying to find valid Federal jurisdiction for a new and improved statute. I think it always comes as a shock to members of both houses of Congress that they do not have jurisdiction over absolutely everything!

By: Simon

Simon — Wed, 15 Feb 2006 14:44:55 +0000

NJ Annuitant, I don't disagree with any particuly point of that (indeed, I made the same point about attaching strings to federal money in the blog post I linked to previously), but the problem is that FPBAA, 117 Stat. 1201, speaks to none of these things. It is, or attempts to be, an outright national ban, which is precisely the basis on which it is being litigated. Now, if the court wants to uphold it as it applies within Federal jurisdiction, per your list of jurisdictions, I don't have a problem with that. But the reality is that even if Congress wants to prohibit certain forms of abortion, this law exceeds its powers to do so, and should be struck down. Congress can't simply declare a compelling interest in a subject and legislate accordingly; Congress "is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution."

By: The NJ Annuitant

The NJ Annuitant — Wed, 15 Feb 2006 13:49:16 +0000

Simon — Ideas as to Federal jurisdiction over abortions: A partial birth abortion ban could apply to doctors who are employees of the Federal government; to abortions in D.C. , and on Federal property; to abortions done in facilities that accept Federal money; and further, Congress could require a State to enact a partial birth abortion ban in order to qualify for Federal money.

By: Simon

Simon — Wed, 15 Feb 2006 12:52:06 +0000

For reasons explained here, I remain deeply sceptical about the Constitutionality of the Federal ban, not because of a lack of adequate exceptions (as the ninth circuit found, and as this brief seems mainly premised on), but on the basis that the act is ultra vires, and this brief does nothing to convince me otherwise, since it continues to proceed on the assumption that Congress had the authority to pass the statute in the first place, which is precisely what I doubt. Our Hero has said:

[I]f a state were to permit abortion on demand, I would and could in good conscience vote against an attempt to invalidate that law, for the same reason that I vote against invalidation of laws that contradict Roe v. Wade; namely, simply because the Constitution gives the federal government and, hence, me no power over the matter.

I agree - and if the Court grants cert, we will find out if Justice Scalia has changed his mind.

By: Lionel Hutz

Lionel Hutz — Wed, 15 Feb 2006 01:50:34 +0000

Any chance you can post the SG’s latest submission?