Federalism and Partial Birth Abortion:

In Gonzales v. Carhart, today's partial birth abortion decision, the mostly liberal advocates of virtually limitless congressional power under the Commerce Clause are to a certain extent reaping the fruit of what they sowed in cases such as Gonzales v. Raich. I discussed this point in more detail in a post discussing the oral argument in Carhart, back in November. In the argument, Justice Stevens and Justice Ginsburg expressed concern that a federal ban on partial birth abortion - particularly one that extends to free abortion clinics - may exceed Congress' Commerce Clause authority, which only gives it the power to regulate "commerce . . . among the several States:" That concern is, in my view, well-taken. However, it directly contradicts the Court's decision in Gonzales v. Raich, which endorsed virtually unlimited congressional power over anything that Congress has a "rational" basis to believe is even remotely connected to interstate commerce. Ironically, Stevens wrote the majority opinion in Raich, and Ginsburg signed on to it. For more details on why Raich, for all practical purposes, completely negates limits on congressional power, see my article on the case, and also the excellent analysis by VC co-conspirator Jonathan Adler. Obviously, liberal justices were not the only ones to endorse essentially unlimited federal power in Raich, and David Bernstein is right to call attention to Justice Scalia's possible doubts about the validity of his deeply flawed concurring opinion in that case. I critique that opinion at pp. 25-27 of my article.

I warned in the article and in my November post on Carhart that virtually limitless federal power can be used to uphold far-reaching conservative legislation, as well as liberal, and that it is far from clear that unlimited federal power is in the interests of liberals in an era when the federal government will often be controlled by conservative Republicans. And I explained how the federal partial birth abortion ban is an example supporting my point.

More importantly in a highly diverse society most such controversial social issues are better handled at the state, local, and private sector levels than through a one-size-fits all federal solution. Federalism debates often come down to a matter of whose ox is being gored in a particular case, which is perhaps understandable. However, there are also important systematic advantages of decentralization that are lost under a central government with nearly unlimited power. I will not go over those advantages in detail in this already lengthy post. But I have written about them extensively in the Raich article, and also here, here, here, and here, among other places.

Perhaps one consequence of Gonzales v. Carhart will be at least a modest increase in appreciation for federalism among both liberal and conservative jurists.

UPDATE: As I noted in my November post, the parties in this case did not raise the Commerce Clause/federalism issue, and the Court therefore was right not to address it. This post is not so much a criticism of the Court's reasoning, as an analysis of the case's broader implications.