Last night’s NBC’s town hall in Miami with former Vice President Joe Biden was panned, to quote Politico’s Marc Caputo, as another “Biden Informercial” that protected the candidate from both tough questions and skeptical voters. There was not a single question on Biden refusing to answer whether he supports packing the Supreme Court, a move supported by his running mate Kamala Harris and various top Democrats in this election.  However, Biden did make one notable comment about the Court and nominee Amy Coney Barrett.  He said that, if Barrett helped reverse Roe v. Wade, he would make “Roe the law of the land.”

If Roe were overturned, Biden declared his “only response to that is pass legislation making Roe the law of the land. That’s what I would do.”

The comment was notable in a number of respects.  First, states could challenge such a move. As with Biden’s declaration that he will require mandatory mask wearing nationwide, there are serious questions over his authority to compel such action due to federalism limitations. If the Supreme Court struck down Roe, it would be presumably based on the position that it is not a constitutional right.  Biden would then order states to guarantee something that is not constitutionally required. That would put the Biden Administration on a collision course with the Tenth 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.”

Making “Roe the law of the land” would require a federal law guaranteeing the right to an abortion. Yet, after the Supreme Court overturned Roe, states could claim that this is no longer a right “delegated to the United States by the Constitution, nor prohibited by it to the States.” The Framers were deeply concerned about precisely this type of federal encroachment as James Madison addressed in Federalist #46. They created a system to support the “refusal to cooperate with officers of the Union.”

The alternative to simply tie federal funding for medical care and insurance to access to abortion services. That would also raise federalism issues and the question of “commandeering” states. In 1992, in New York v. United States, the Supreme Court invalidated part of the Low-Level Radioactive Waste Policy Amendments Act of 1985 as commandeering. In 1997, in Printz v. United States, the Supreme Court held that the federal government cannot order states or cities to enforce federal law. In Independent Business v. Sebelius(2012), the Court held that the federal government could not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs.  In Murphy v. NCAA (2018), the Court again warned that Congress could not take any action that “dictates what a state legislature may and may not do” in such policy or program disputes.

If the media is not going to press Biden on court packing, it is not likely to do so on these constitutional questions.  However, it is also notable that, if successful, Biden’s action would support the view of many who oppose Roe v. Wade.  It is possible to be in favor of the right to choose and still disfavor Roe.  Some believe that this is a matter for the states and that voters can protect this right as a matter of state law.  Biden’s reference to a legislative fix is clearly federal not state. However, it highlights that fact that, even if Roe were overturned, it would not mean the elimination of the right to choose.  Most states would likely continue to protect the right as a matter of statutory law. Clearly, however, some would not. Moreover, if you view abortion as an individual constitutional right, such state authority over this decision is obviously unacceptable.

This is an area where experts can have good-faith disagreements. It is dependent on your view of federalism and related constitutional questions. It is worthy of debate and discussion.  As with the court packing scheme, this new position raises questions over how Biden views fundamental constitutional values and powers. Unfortunately, the NBC event stumbled over a substantive exchange, but then promptly moved on.  Like packing the Court, voters will have to wait to hear how such authority would be or could be used in a Biden Administration.