OPINION:
Vice President Kamala Harris is campaigning for legislation that would liberalize access to abortion nationwide. As a lawyer, she should know that such legislation is likely unconstitutional.
When Congress acts, it must have a grant of authority in the Constitution. For example, it has the power to enact laws that enforce constitutional rights but the Supreme Court has the power to define what those rights are. The Court has decided abortion is not a right protected by the Constitution and Congress cannot contradict that decision legislatively.
Congress also has the power to regulate activities that affect interstate commerce, but those activities must be commercial in nature. Abortion affects the economy and is a paid service, but it is not essentially commercial.
Finally, Congress has the power to place conditions on federal financial assistance but not in a way that leaves states no choice. It would take a powerful incentive (say, withholding a significant portion of Medicaid reimbursement) to make a state liberalize its abortion laws, but such inducement would “pass the point at which pressure turns into compulsion” (South Dakota v. Dole quoting Stewart Machine Co. v. Davis).
As president, Ms. Harris could retaliate by pressuring Congress to limit the terms of Supreme Court justices and then appoint others to fill the seats of those who must retire. The Constitution, however, grants federal judges tenure for life.
Even if Congress could require lower federal court judges to take senior status and thus create vacancies, it could not require the same of Supreme Court justices. Congress has more power over the former since the establishment of lower federal courts is within its discretion. But the Constitution itself, not Congress, created the Supreme Court and the Constitution, not Congress, can prescribe the tenure of its members. In no case can Congress use its power to undermine the court’s independence.
As a politician, Kamala Harris can promise anything she wants and then blame the court when it is found unconstitutional. National legislation to enshrine abortion is likely unconstitutional; it is a campaign promise she should know will be broken.
STEPHEN L. MIKOCHIK
Professor emeritus, Temple University School of Law
Mount Joy, Pennsylvania
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