Elon Law professor: Commerce Clause not enough for abortion, COVID response

An article by Professor Tom Molony in the Georgetown Journal of Law & Public Policy explains limits on federal power to address key concerns raised by President Joe Biden and, previously, former President Donald Trump.

Professor Tom Molony

What do efforts by the Biden Administration to “codify Roe v. Wade” have in common with former President Donald Trump’s assertion of federal power to override state limitations on business operations during the COVID pandemic?

Tom Molony has an answer: Article 1, Section 8, Clause 3 of the U.S. Constitution does not empower the federal government to do either.

The Commerce Clause, as it’s commonly known, gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes,” among other powers.

But as Molony argues in a new journal article, President Joe Biden, and Trump before him, failed to acknowledge the limits of federal power over commerce, which abortion rights bills cite and which would have been the natural place for Trump to have looked for constitutional authority.

Molony makes clear in his analysis that “sweeping re-opening legislation and (the Women’s Health Protection Act) stretch the Commerce Clause beyond its breaking point.”

“Inconvenient Federalism: The Pandemic, Abortion Rights, and the Commerce Clause” appears in the latest issue of the Georgetown Journal of Law & Public Policy.

Molony’s article contextualizes the issues Biden and Trump both wanted to address. The Biden Administration and the Democratic Party have called for federal abortion rights legislation in response to the U.S. Supreme Court’s abortion ruling earlier this year. Trump threatened to forcibly reopen an American economy shuttered by state lockdowns in the early days of the COVID-19 pandemic when Trump was facing a close re-election bid.

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However, as Molony writes, U.S. Supreme Court decisions on matters ranging from the constitutionality of gun restrictions to a health insurance mandate confirm that Congress does not have unlimited power to regulate commerce. Authorizing business operations within a state generally is a matter for the states themselves.

Nor is Congress permitted to legalize activity that states have deemed a crime. Legalization is not regulation.  And the very name of the Women’s Health Protection Act is a constitutional red flag, he writes, because directly policing the practice of medicine within state borders is the province of the states.

“President Trump may have wanted to force States to re-open and President Biden may want to codify Roe, but the Commerce Clause is not a door to measures such as these,” Molony writes in his conclusion. “Presidents and Congress may find federalism inconvenient at times. That is just what the Founders hoped.”

Molony joined the Elon Law faculty after practicing law with the Charlotte firm of Robinson, Bradshaw & Hinson. With a scholarly interest in the jurisprudence of U.S. Supreme Court Chief Justice John Roberts, Molony has previously written about national efforts to codify Roe v. Wade and related constitutional considerations.

“Taking Another Look at the Call on the Field: Roe, Chief Justice Roberts, and Stare Decisis”, an article Molony authored in 2020 for the Harvard Journal of Law & Public Policy, foreshadowed Roberts’s concurring opinion in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court’s decision that overturned Roe v. Wade.

More recently, his column “Congress Can’t ‘Codify Roe v. Wade’” appeared in the July 5, 2022, edition of The Wall Street Journal following the Dobbs ruling.