At Just Security, Daniel Rice (Institute for Constitutional Advocacy and Protection): Female Genital Mutilation and the Treaty Power: What Congress Can Do.  From the introduction:

Since 1996, the act of female genital mutilation (FGM) has been a federal crime. Federal circuit courts have characterized FGM as “a barbaric practice unbecoming of a civilized society,” “a form of physical torture causing grave and permanent harm,” and “a horrifically brutal procedure.” According to a high-ranking official in ICE’s Homeland Security Investigations unit, “[b]rutality of this nature is inconceivable and horrifying.” And the Solicitor General of the United States recently declared FGM to be “an especially heinous practice . . . that should be universally condemned.” In keeping with this uncompromising posture, successive administrations have used their diplomatic clout to pursue the global eradication of FGM.

But in November 2018, Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan issued a sweeping opinion holding the FGM statute unconstitutional on the grounds that neither Congress’s treaty-implementing authority nor its power to regulate interstate commerce justified § 116(a)’s enactment.

… Despite “condemn[ing] [FGM] in the strongest possible terms,” DOJ insisted that no reasonable argument could be made in the statute’s defense under either the treaty power or the Commerce Clause. DOJ then moved to withdraw its appeal …  The Sixth Circuit granted DOJ’s motion, thereby ensuring that the district court’s extraordinary ruling would avoid appellate review.

My thesis is simple: both the district court and DOJ performed disastrously. Each actor predicated its constitutional analysis on an astonishingly shallow understanding of the nature of FGM and the legal framework for regulating it. In this article, I will explain why § 116(a) is justifiable as a means of implementing the United States’ treaty obligations. There is a clear rational relationship between the FGM statute and rights protected under the International Covenant on Civil and Political Rights (ICCPR). And even if federalism principles constrained Congress’s ability to implement treaty obligations—which, under current law, they do not—FGM is not the sort of “purely local” crime purportedly reserved for state and local regulation.

It’s an insightful and informative post, but my view is different — as explained in an article I wrote after Bond v. United States (the case involving the woman in Pennsylvania who attempted to poison a romantic rival and was prosecuted for violating the Chemical Weapons Convention implementation act): Congress’s Limited Power to Enforce Treaties.

Contrary to Justice Scalia’s concurrence in the Bond case, I think Congress (as an original matter) does have power to enforce treaties from a combination of the President-and-Senate’s power to make treaties and Congress’ power to “make all laws which shall be necessary and proper for carrying into Execution … all other powers vested in the Government of the United States, or in any Department or Officer thereof.”  But in order to constrain the threats to federalism identified by Scalia’s concurrence, I argued that the “necessary and proper” requirement should be interpreted to impose two constraints:

(a) the treaty obligation Congress seeks to enforce should be unambiguous (so that Congress cannot augment its power beyond what the treatymakers intended);  and

(b) the treaty obligation Congress seeks to be enforce should not be readily enforceable by the states (so that Congress’ action is really “necessary”).

Applied to the FGM statute, I wouldn’t say there is no reasonable argument in favor of Congress.  But although it’s a close case I would say the statute, as applied to purely local incidents, fails both prongs of the test.   First, the treaty obligation is not unambiguous.  There is no treaty prohibiting FGM by name.  As the linked post explains, the supposed obligation comes from Article 24 of the International Covenant on Civil and Political Rights (ICCPR), which provides that “[e]very child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”  Maybe this provision prohibits FGM (the UN Human Rights Committee says it does), but maybe it doesn’t.  My view is that only obligations the Senate clearly approved in the treatymaking process should be the foundation for congressional enforcement — else the political protections for federalism embodied in the treatymaking process can be circumvented.

The post argues that “an implementing statute need be only rationally related to the treaty it seeks to effectuate.”  I think that’s the wrong standard, both as an original matter and as a matter of modern law.    The implementing statute needs to be tied (we can debate how closely) to an actual obligation in the treaty (not just to an obligation that could possibly be found in the treaty).  Otherwise, Congress has far too much ability to legislate beyond what the treaty authorizes.

As to the second point, it’s not clear to me why FGM cannot be prohibited at the local level.  The post argues that (a) FGM is a matter of international concern because it has generated international opposition and international support for its suppression, and (b) that it often involves travel across state or national boundaries.  As to the first point, I don’t think that matters.  The question is whether states have the will and ability to act against it.  In its purely local manifestation, I would think they do.  If states have systematically failed to act, that might make federal intervention necessary.  But it’s not clear that states are refusing to act.  As to the second point, Congress can use its interstate and foreign commerce power to suppress interstate and foreign travel for commercial purposes, and the treaty implementation power might allow Congress to suppress noncommercial travel across state lines.  But the fact that such travel occurs does not make it necessary for Congress to regulate purely local activity.

So on balance I think Judge Friedman and the Justice Department got it right, despite Daniel Rice’s excellent argument to the contrary.    Congress’ power to implement treaties is, as Justice Scalia argued in Bond, a grave threat to federalism if not adequately constrained.    Congress needs to show that it is implementing an obligation clearly contained in the treaty (not just an arguable one) and that congressional action is necessary because the states are unwilling or unable to enforce that obligation.

NOTEThis post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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