Sen. Marco Rubio apparently has gotten himself into a little pickle.

You see, the Florida Senator was one of the Republicans who signed onto a bill requiring lawmakers to provide constitutional justification for any legislation filed in Congress. That sounded like a really cool idea at the time. “Conservatives” LOVE that stuff!

Yay Constitution!

But what happens when you want to do something and no constitutional justification exists?

Well, you do what politicians have done since the beginning of time. You make crap up.

That doesn’t always prove easy, as Rubio is finding out. It takes time to conjure up a convincing lie out of thin air. Of course, that never stopped any politician practicing constitutional voodoo to further his agenda through the exercise of federal power – even if that authority doesn’t actually exist. They just call lack of constitutional authority an “inconvenience.”

It seems the Tea Party darling from Florida has a little “inconvenience” on his hands. He needs to reestablish his conservative creds, tattered by his support for immigration reform. What better way to rekindle conservative romance than to play the pro-life card? So, Rubio announced earlier this month that he wants to serve as the lead sponsor on a bill banning abortions after 20 weeks.

But three weeks later…no bill. Why? Well, it seems the Republicans are having a little difficulty agreeing on the enumerated power that authorizes the federal government to legislate on abortion. And I can tell you exactly why they are having this problem.


According to a report in Politico , Rubio said “certainly” the Constitution allows for a federal law banning abortions after 20 weeks — it’s just a question of which portion of the document.

“What we have among pro-life supporters in the Senate is a difference of opinion about: which constitutionally enumerated power is this flowing under?” Rubio said. “We just have not yet been able to come to a consensus on that.”

Translated: pro-life supporters in the Senate can’t agree on which line of crap to feed Americans so they can justify doing whatever they want to do. The only odd thing here is the fact that they seem to want to come up with something believable. Usually, they don’t even bother with that.

Seriously, if the  Constitution actually delegated such power, it wouldn’t prove that difficult to find. Only a few enumerated powers actually exist – between 30 and 35, depending on how you count them. You won’t find abortion banning among them. The fact that these DC’vers can’t quickly point to the constitutional authority indicates it doesn’t exist.

Madison clearly specified the powers that would remain to the states and the people in Federalist 45:

The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State.

Abortion unambiguously fall within that sphere.

Rubio and his clan need to butt out.

A couple of weeks ago, the Texas legislature passed a bill banning abortions after 20 weeks. As the Tenth Amendment Center reported at the time, this was absolutely appropriate. State legislatures actually have the authority to restrict abortions. This debate should play out at the state level. But neither side can resist the Sirens’ song of federal power.

Like most politicians, Rubio is myopic. He sees a chance to “win” on this issue by bringing federal power to bear. And more likely, he sees an opportunity to prop up his flagging popularity among “conservatives.” But he either fails to see – or simply doesn’t care about – the violence this little stunt will do to the Constitution, and ultimately the pro-life cause. When the voodoo fog clears and the Republicans come up with their faux constitutional justification to legislate a federal abortion ban, they will have opened the same door of power to the “liberals” and pro-choicers who want to prohibit any state abortion legislation, such as the new Texas law that was clearly a victory for the pro-life movement.

Americans on both sides of the political aisle need to wrap their heads around this undeniable fact: when you justify undelegated power to do “good things” you are ultimately just justifying undelegated power.

And really, how can you justify that?

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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