There is an important federalism ruling out of Michigan that will likely rekindle the debate over the continuing inherent powers of the states vis-a-vis the federal government. Despite the massive expansion of the federal criminal code, most crimes were viewed as state not federal matters in the early days of the Republic. Now, a federal judge in Michigan has ruled that Congress went beyond its constitutional domain in 1996 in criminalizing female genital mutilation. The issue is not whether FGM should be criminalized but whether this is a state or a federal matter under the Constitution. Over half of states (27) have criminalized FGM. Senior United States District Judge Bernard A. Friedman threw out six of the federal charges against Jumana Nagarwala, who was accused of performing FGM on girls around the age of seven.
Judge Friedman’s decision rests on a series of cases where the Court ruled that certain crimes and criminal conduct remain state matters. In United States v. Morrison, 529 U.S. 598 (2000), the Court struck down the Violence Against Women Act (“VAWA”), which established a private right of action for victims of “crimes of violence motivated by gender.” The Court noted that the crime under the statute did not regulate economic activity and did not raise a truly interstate matter:
“Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.”
What is striking is that many of the arguments against this ruling cite the impact on young girls which is clearly horrific and intolerable. However, that is the type of argument rejected in Morrison: “[The VAWA] is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families. But the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. . . .”
Judge Friedman’s analysis is dispassionate and direct:
“As the Supreme Court has stated, “[a] criminal act committed wholly within a State ‘cannot be made an offence against the United States, unless it have some relation to the execution of a power of Congress, or to some matter within the jurisdiction of the United States.'” Bond, 572 U.S. at 854 (quoting United States v. Fox, 95 U.S. 670, 672, 24 L. Ed. 538 (1878)). For the reasons stated above, the Court concludes that Congress had no authority to enact 18 U.S.C. § 116(a) under either grant of power on which the government [*42] relies. Therefore, that statute is unconstitutional.”
While one can clearly disagree with his conclusions, the decision is well-written and well-analyzed and certainly worth a read.
Here is the decision: Nagarwala Opinion