Typical of these criticisms, at least in the conservative press, is Richard Kirk's article, "Does the Commerce Clause Protect Female Genital Mutilation?" Most of the article is a criticism of the broad authority that the judicial branch has allowed the federal government to exercise under the Commerce Clause. Kirk's analysis of the Nagarwala decision is actually rather brief. He begins his article by outlining the basic facts:
Three weeks ago U.S. District Judge Bernard Friedman declared that the twenty-two-year-old federal law banning female genital mutilation was unconstitutional. This ruling took Dr. Jumana Nagarwala and seven others off the legal hook for allegedly “circumcising” the genitals of nine girls from Michigan and two adjacent states, girls who were around seven years old when Dr. Nagarwala, an immigrant from India, performed an operation that most American doctors just won’t do. Though only nine girls were included in the charges, it is likely that dozens more underwent a genital cutting ritual observed by a Muslim sect based in India and apparently practiced by several worshipers attending a Farmington Hills, Michigan mosque.He, later, explains:
While I am sympathetic to almost any attempt to limit federal authority, it is strange that one of the few attempts to actually enforce reasonable limits on the national government’s legislative power should take place in a "multicultural" context. I would feel much better about Judge Bernard’s ruling if limits on federal authority had been a judicial priority when it came to topics like same-sex marriage, federal incursions into collegiate sports under Title 9 to assure "equal" male-female access to athletic programs, and the unjust federal pressure exerted against pliant university administrators to create kangaroo rape courts that are totally prejudiced against accused males. I say nothing about EPA incursions of power over every patch of puddle-worthy soil that could possibly be designated "wetlands."In other words, as I interpret his comments, he would praise the judge's decision in most any other context than this one.
Like much of the conservative criticism of Judge Friedman's decision, I am left with the impression that Kirk did not actually read the decision itself.
The first thing to note about the decision is that the government's primary argument for its authority to promulgate the prohibition on FGM is that it was derived from a treaty: the International Convention on Civil and Political Rights (ICCPR), ratified in 1992 by the Senate. The specific portions cited by the government were Article 3, which calls on the signatories to “ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”; and Article 24, which states that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Then, via the magical power of the Necessary and Property Clause (also termed the "Elastic Clause" because it can be stretched to encompass most anything undertaken by the government), Congress then had the authority to outlaw FGM and impose criminal punishments for a violation of the law. Or so the argument went.
The judge was disturbed--rightly, I believe--that such vague language assuring equal rights in an international treaty, could be used as grounds for promulgating a criminal statute. Judge Friedman determined that there was no rational relationship between the treaty provisions and the criminal statute.
But, Judge Friedman reasoned, even if there was a rational relationship between the treaty and the statute, it was beyond the power of Congress to enact such laws. That is, even if the treaty authorized such a law, the Congress still could not pass the law if it did not otherwise have the constitutional authority to do so. While most Americans tend to assume that Congress can pass laws on any and all subjects--i.e., that the federal government possesses general police powers--this is not true. The Constitution established a federal government with limited and enumerated powers. And this was the case until the Civil War when the federal government began to take upon itself more and more power. Nevertheless, Congress still needed to root its authority in the enumerated powers. Thus, for instance, the National Firearms Act was based on the authority of Congress to impose taxes. But, in support of the various federal projects and programs enacted during the Great Depression, Congress, the President and the federal Courts turned to another Constitutional authority: the Commerce Clause.
The Commerce Clause was intended to prevent individual states from erecting trade barriers and tariffs as against other states--essentially creating a common market or trade zone. But under FDR, it became an excuse to regulate almost all commercial activity. And, with only a handful of exceptions, Courts have interpreted the clause to allow the federal government to exercise authority over a plethora of issues that historically have been considered general police powers only rightfully exercised by states.
This case is one of the rare push-backs. The federal government argued that FGM was a commercial activity (health care) for which there was an interstate market. The court rejected that argument because FGM was not health care, but a form of physical assault; and, unlike illegal drugs or pornography, the court said, there was no evidence of an interstate market for FGM. In that regard, the court held that it presented a situation analogous to the illegal possession of a handgun in a school zone which the Supreme Court had previously held was not a commercial activity in U.S. v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Thus, making FGM a crime was something that fell within the purview of the powers reserved to the states.
All the legal arguments aside, what the federal government was arguing in this case was that it was authorized to make something illegal by dint of a treaty. And not just any other treaty, which may deal with a narrow topic, but an international convention with the vaguest of wording. The same vague wording that we see in other similar conventions such as on global warming, or the proposed Global Compact for Safe, Orderly and Regular Migration.
Do we want the United States government basing criminal laws on vaguely worded treaties? I would say no. So, rather than criticizing Judge Friedman's decision, we should be praising it.