Inconvenient Federalism: The Pandemic, Abortion Rights, and the Commerce Clause

AuthorThomas J. Molony
PositionProfessor of Law, Elon University School of Law
Inconvenient Federalism: The Pandemic, Abortion
Rights, and the Commerce Clause
When United States presidents perceive a crisis, they tend to hide their eyes
from the limits of federal power in our constitutional system. Former President
Donald Trump and President Joe Biden are no exception. As the COVID-19
pandemic ravaged the nation’s health, its economy, and his own re-election
prospects, President Trump claimed totalcontrol, suggesting that he could
compel state governors to let businesses re-open in their states. And when a
Texas abortion prohibition initially evaded challenge in federal court,
President Biden renewed his commitment to codifying Roe v. Wade, indicating
that he would work with Congress to force every state to permit abortion on the
Federal Government’s terms.
The Founders, though, did not establish a paternalistic relationship between
the Federal Government and the states. Article I contains no whatever-it-
takes-to-solve-a-national-problem power,the dissenting Justices rightly
explained in National Federal of Independent Business v. Sebelius. The Federal
Government’s power is limited to what is delegated in the Constitution, and
the states are sovereigns, too. When a federal statute conflicts with a state
law, the federal statute emerges triumphant only when it is tethered to pow er
that the Constitution delegates to the Congress. An unmoored federal law is
no law at all.
Thus, for the Federal Government to force states to re-open their economies
in the midst of a pandemic or to allow abortion within their borders without
restrictions deemed undesirable, Congress must act pursuant to one of its dele-
gated powers. For re-opening legislation, Congress’s power to regulate inter-
state commerce seems the most likely choice, and the Women’s Health
Protection Act (WHPA), legislation that has been introduced and reintroduced
in Congress many times over the years to codify Roe and eliminate certain state
law restrictions on abortion, explicitly invokestheCommerceClauseasa
source of congressional power.
This Article considers whether the Commerce Clause supplies the power nec-
essary for hypothetical re-opening legislation and WHPA. The United States
Supreme Court’s steady march to interpret the Clause more and more broadly
* Professor of Law, Elon University School of Law. This Article is dedicated to the memory of
Joseph Allen Molony, Jr. My brother and I could not have asked for a better dad. ©2022, Thomas J.
suggests an easy answer. But decisions from long ago describe foundational
limits that the Court has not disavowed: the states enjoy nearly exclusive power
to authorize businesses to operate within state boundaries, Congress does not
have the power to regulate the practice of medicine directly, and a state’s
power to define and punish violent crime is sacrosanct. Consequently, this
Article concludes that sweeping re-opening legislation and WHPA stretch the
Commerce Clause beyond its breaking point.
INTRODUCTION ............................................ 488
II. THE COMMERCE CLAUSE ................................ 496
PROTECTION ACT ...................................... 504
A. The Commerce Clause Does Not Grant Congress the Power to
Legalize Internal Trade that States Wish to Prohibit. . . . . . . . 506
B. Additional Reasons Why Congress Does Not Have Power
Under the Commerce Clause to Enact to WHPA. . . . . . . . . . . 512
1. The Commerce Clause Does Not Grant Congress the
Power to Regulate the Practice of Medicine Directly. . . . 513
2. The Commerce Clause Does Not Grant Congress the
Power to Decriminalize Conduct a State Has Defined as
Criminal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516
CONCLUSION.............................................. 521
The Constitution can get in the way. When President Harry Truman tried
to seize steel mills during the Korean War, he learned that the Constitution
does not give the president emergency powers.
When Congress sought
to protect individuals from state regulatory action that encroaches on
their religious exercise, the United States Supreme Court explained that
Section 5 of the Fourteenth Amendment does not supply the necessary
1. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 58789 (1952) (concluding that
President Truman did not have power under the Constitution to seize property without an act of
And when Congress attempted to withhold existing Medicaid
funding from states that refused to expand the program, the Court reminded
Congress that it cannot not use its spending power to coerce states into
doing what the Federal Government wants.
As the Court explained in
A.L.A. Schechter Poultry Corporation v. United States:Extraordinary conditions
may call for extraordinary remedies. But ...[e]xtraordinary conditions do not
create or enlarge constitutional power... . Those who act under ... grants [of
constitutional power] are not at liberty to transcend the imposed limits because
they believe that more or different power is necessary.
The president and Congress, though, continue to reach beyond the natural
extent of [federal] authority, ‘[and] ...[try to] draw[] all power into [the Federal
Government’s] impetuous vortex.’
For example, with a pandemic wreaking
havoc on the nation’s health and economy, President Trump declared that he
could force governors to lift restrictions on business activities within their states:
When somebody is president of the United States, the authority is total....The
governors know that.
The 45th president backed off,
perhaps after a reminder
about separation of powers, but his claim raises an important question about the
reach of federal powerwhether the Constitution permits federal legislation that
would force states to allow internal trade in the midst of a pandemic (referred to
in this Article as re-opening legislation).
2. See City of Boerne v. Flores, 521 U.S. 507, 511, 536 (1997) (holding that Congress did not have
the power under Section 5 of the Fourteenth Amendment to make the Religious Freedom Restoration
Act of 1993 apply to the States).
3. See Nat’l Fed’n of Indep. Bus. (NFIB) v. Sebelius, 567 U.S. 519, 57778 (2012) (opinion of
Roberts, C.J.) (Congress may use its spending power to create incentives for States to act in accordance
with federal policies. But when ‘pressure turns into compulsion,’ the legislation runs contrary to our
system of federalism.); id. at 679 (Scalia, Kennedy, Thomas & Alito, JJ., dissenting) ([I]f States really
have no choice other than to accept the package, the offer is coercive, and the conditions cannot be
sustained under the spending power.).
4. A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495, 52829 (1935).
5. NFIB, 567 U.S. at 554 (opinion of Roberts, C.J.) (quoting THE FEDERALIST NO. 48 (James
6. Jill Colvin, Zeke Miller & Geoff Mulvihill, Trump Claims ‘Total’ Authority, Over Govs, to Reopen
SSOCIATED PRESS (Apr. 13, 2020),
news-politics-health-ba9578acf23bdb03fd51a2b81f640560 [] (quoting President
Donald Trump).
7. See Jeff Mason &AlexandraAlper,Trump Says Close to Plan to Reopen Economy Possibly, in
Part, Before May 1,R
EUTERS (Apr. 14, 2020),
trump/trump-says-close-to-plan-to-reopen-economy-p ossibly-i n-part-be fore-may- 1-idUSKCN2 1X060
[] (Trumps aid he would not press states to re-open.).
8. See Byron Tau, Trump’s Legal Authority to Overrule Governors on Coronavirus Is Limited,
WALL ST. J. (Apr. 14, 2020),
governors-on-coronavirus-is-limited-11586891577 [] (noting that
Congress’s power under the Commerce Clause is broad, but not unlimited); John Yoo, No, Trump
Can’t Force States to Reopen,N
ATLREV. (Apr. 13, 2020),
04/no-trump-cant-force-states-to-reopen/ [] (Congress enjoys the
federal system reserves the leading role over public health to state governors. States possess the

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