Two bills introduced in the U.S. House of Representatives show that whatever they may say on the campaign trail, many Republicans in Congress don’t have much more respect for federalism, states’ rights, or local control than Democrats do.
These two bills also demonstrate, if further demonstration be needed, that Congress has broken almost all constitutional restraint, and that a convention of states is the only real hope left, short of massive civil disobedience, of repairing the situation.
The first bill is H.R. 36, which passed the House on May 13 with nearly unanimous GOP support. It would outlaw most abortions of fetuses more than five weeks old.
I’m pro-life, so I think curtailing abortion would be a good thing. But the Constitution specifically limits Congress to certain enumerated powers, and regulating abortion is not one of them. H.R. 36 offers no clue as to what its constitutional basis is supposed to be. It’s basically a criminal law of the kind the Constitution clearly leaves to the exclusive jurisdiction of the states.
When I worked for pro-life groups, one of our key arguments was that the Supreme Court’s abortion decision in Roe v. Wade violated the Constitution because it improperly federalized an issue that is constitutionally a state responsibility. Even many pro-choice Americans agree with that principle.
But the unprincipled GOP House majority just threw that argument into the trash bin. Republican members of Congress can no longer credibly use it.
The other bill is H.R. 2300, a massive (242 page) measure to re-jigger the health care system yet again. Although the bill has some good parts (e.g., repealing Obamacare), it also imposes mandates on state courts considering health care claims.
The Constitution grants no power to Congress to impose rules on state courts about how they resolve health care cases, other than the power to enforce the 14th amendment rule that those courts respect due process and equal protection of the law. In fact, during the debates over whether to ratify the Constitution, the document’s proponents sold it to the public in part by affirming that subjects such as tort law, most criminal law, civil justice among citizens of the same state, and health care all would remain immune from congressional meddling.
Yet H.R. 2300 would empower unelected bureaucrats in the Department of Health and Human Services to override state law in an area the Constitution clearly reserves to the states. H.R. 2300 recites no constitutional basis for this provision.
Widespread support for H.R. 36 and H.R. 2300 from House Republicans—generally elected on promises to respect our system of federalism—provides yet more evidence that Congress will never cure Congress. It’s up to the states, acting through the amendment process of Article V, to do the job.