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

• Author: Thomas J. Molony
• Position: Professor of Law, Elon University School of Law
• Pages: 487-522

ARTICLES

Inconvenient Federalism: The Pandemic, Abortion

Rights, and the Commerce Clause

THOMAS J. MOLONY*

ABSTRACT

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 “total”control, 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 “invokes”theCommerceClauseasa

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.

Molony.

487

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.

TABLE OF CONTENTS

INTRODUCTION ............................................ 488

I. THE PANDEMIC AND ABORTION REGULATION ................. 492

II. THE COMMERCE CLAUSE ................................ 496

III. RE-OPENING LEGISLATION AND THE WOMEN’SHEALTH

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

INTRODUCTION

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.

1

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, 587–89 (1952) (concluding that

President Truman did not have power under the Constitution to seize property without an act of

Congress).

488 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 20:487

authority.

2

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.

3

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.”

4

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.’”

5

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.”

6

The 45th president backed off,

7

perhaps after a reminder

about separation of powers, but his claim raises an important question about the

reach of federal power—whether 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”).

8

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, 577–78 (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, 528–29 (1935).

5. NFIB, 567 U.S. at 554 (opinion of Roberts, C.J.) (quoting THE FEDERALIST NO. 48 (James

Madison)).

6. Jill Colvin, Zeke Miller & Geoff Mulvihill, Trump Claims ‘Total’ Authority, Over Govs, to Reopen

Economy,A

SSOCIATED PRESS (Apr. 13, 2020), https://apnews.com/article/virus-outbreak-donald-trump-ap-top-

news-politics-health-ba9578acf23bdb03fd51a2b81f640560 [https://perma.cc/9FLU-JE8J] (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), https://www.reuters.com/article/us-health-coronavirus-

trump/trump-says-close-to-plan-to-reopen-economy-p ossibly-i n-part-be fore-may- 1-idUSKCN2 1X060

[https://perma.cc/A6QW-7KQD] (“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), https://www.wsj.com/articles/trumps-legal-authority-to-overrule-

governors-on-coronavirus-is-limited-11586891577 [https://perma.cc/A3AQ-WA3U] (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

AT’LREV. (Apr. 13, 2020), https://www.nationalreview.com/2020/

04/no-trump-cant-force-states-to-reopen/ [https://perma.cc/5CSW-HUYF] (“Congress enjoys the

authorityto‘regulateCommercewithforeignNations,andamongtheseveralStates.’...Butour

federal system reserves the leading role over public health to state governors. States possess the

‘policepower’toregulatevirtuallyallactivitywithintheirborders....Onlythestatescanimpose

2022] COVID, ABORTION RIGHTS,AND THE COMMERCE CLAUSE 489