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• tal@lemmy.today ⁨3⁩ ⁨weeks⁩ ago

  The point was there is no federal law allowing abortion either.

  Things are legal by default.

  If you want to have a law that restricts states from passing law against something, then it goes in the Constitution. The Senate doesn’t amend the Constitution – a three-quarters supermajority of states do.

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  • midribbon_action@lemmy.blahaj.zone ⁨3⁩ ⁨weeks⁩ ago

    I don’t think this is accurate. For one thing, whether a law prohibits or allows something is just a matter of perspective: a law allowing abortion nationally is also a law that prohibits state restrictions on abortion. Another key missing fact is the supremacy clause of the constitution, which says that federal laws are presumed to overrule state laws when they conflict. This is why a lot of ‘blue’ states had terrible abortion laws still on the books when Obergefell happened, because they were nullified by the Roe v Wade ruling in the 70s and they never got around to actually removing the defunct laws.

    The supremacy clause is not absolute: the tenth amendment and others restricts how much the federal government can tell states what to do, but I think there are a number of legal arguments against that being the case for a federal abortion law.

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    • tal@lemmy.today ⁨3⁩ ⁨weeks⁩ ago

      Another key missing fact is the supremacy clause of the constitution, which says that federal laws are presumed to overrule state laws when they conflict. This is why a lot of ‘blue’ states had terrible abortion laws still on the books when Dobbs happened, because they were nullified by the Roe v Wade ruling in the 70s and they never got around to actually removing the defunct laws.

      That doesn’t relate to the supremacy clause. There wasn’t a federal law involved; that ruling was that the state law was unconstitutional, not in conflict with a federal law.

      For the great bulk of legislation, there is no potential for state-federal overlap, since generally either the federal legislature can write law or the state legislature can, not both; that’s why you have the enumerated powers clause.

      In the limited areas where both federal and state governments can legislate, then federal law does take precedence.

      Now, you could argue that maybe there’s some Constitutional authority that permits the federal government to do so.

      kagis

      It looks like the CRS has a document up on this point:

      www.congress.gov/crs-product/LSB10787

      They list three potential routes of relevance:

      One is that there might be a dormant Commerce Clause argument (the federal government has authority over interstate trade) Their take is that while it’s possible that the Commerce Clause might permit regulation of some provision of abortion-related services across state lines (like an abortion clinic doing business across state lines), it most-likely doesn’t cover abortion legality in general.

      The second is that Congress might be able to use the power of the purse — basically, to withhold or extend funds to coerce the states to pass laws at the state level that they want. This was done at one point in the past to force states to raise their drinking age if they wanted highway funds. This can’t be a general “just make states do whatever you want” club, because otherwise you don’t have a federal system. There hasn’t been much case law on this, so the precise line drawn isn’t terribly clear. At one point, the Supreme Court permitted use of it to deny interstate highway funding to states that didn’t raise their drinking age (with the idea that teens would be drunk-driving on the interstate). The other major ruling was on the ACA individual coverage mandate, where the Supreme Court shot down its use. I think that it’s probably a pretty good bet that one couldn’t use it to across-the-board restrict state abortion law, though it might be possible to specifically provide federal funds for abortions (though right now, federal law runs the other way and has a restriction on use of federal funds for abortions).

      The third area they cover is that they maybe, despite the fact that SCOTUS ruled in Dobbs that there’s no general right to abortion in the Constitution, there might still be some sort of argument that the Fourteenth Amendment could in some way affect some peripheral area.

      But, in general, the federal government can’t just say "I don’t like state law, so I’ll pass federal law in the same area.

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  • tal@lemmy.today ⁨3⁩ ⁨weeks⁩ ago

    Now, you could say that maybe there should be no higher bar for amending the Constitution. Like, maybe the bar for changing the “high law” of the Constitution and the “low law” that makes up federal law should be the same. Like, we could have a less-federal or non-federal system where much more power is centralized.

    That’s basically the way the UK works – Parliament doesn’t really have any restrictions on it. There’s no process of judicial review on laws it passes; laws cannot be unconstitutional, and all you need is a simple majority in the House of Commons. Any power that is extended the regions in the UK via devolution is simply granted at the pleasure of Parliament and can be overridden or taken back as they choose. But speaking as someone in California with a Republican trifecta right now, I’m awfully glad for that federal structure, since it’s the only thing that keeps the Republican Party, which presenrly has a trifecta, from having carte blanche to rewrite the rules in California. It does mean thst those of us in liberal states like California have less control over the lives of people in conservative states…but it also means that people in conservative states have less power over the lives of people in liberal states. With more-centralized power, you’d tend toward more homogenous, centralized rules. That will, in general, make a smaller portion of people happy with the rules they live under — the smaller the size of the block for which laws are written, the higher the average percentage of people who are happy with those laws, since it will more closely map to average preference.

    The downside of passing laws for smaller blocks — state instead of federal, local instead of state — is that having “patchworks” of laws does have drawbacks in that it can create more complexity, can make it harder to have businesses that ooerate across multiple states.

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