It's smart for them in my opinion. The Republicans have a structural advantage in the Senate. They will likely retake the Senate and keep it for most of the time. Ergo, Democrats will want to have the filibuster around rather than not.
But they also need to show their base that they at least tried to codify Roe.
Does anyone have the legal chops to explain to me how codifyiing Roe or an abortion ban does not violate federalism, btw? I never see anyone say that it would, but it seems pretty open-and-shut to me.
Does anyone have the legal chops to explain to me how codifyiing Roe or an abortion ban does not violate federalism, btw? I never see anyone say that it would, but it seems pretty open-and-shut to me.
Ben Shapiro has been making this argument pretty strenuously lately, but it's not correct under the current law. Current controlling law is the bullshit Raich case, which held that the federal government could override state weed legalization laws under the interstate commerce clause, even when the weed in question (growing it for home use) was non-commercial and non-intrastate, because it might AFFECT interstate commerce somehow. (because if you didn't grow weed, you might buy it, and the seller might have obtained it from out of state)
Under that logic, the federal government's power is unlimited, since EVERYTHING could be argued to somehow affect interstate commerce. Federalism is already dead under Raich.
Thomas dissented to Raich, but it was 6-3 and even Scalia concurred with the majority, writing "Congress may regulate noneconomic intrastate activities only where the failure to do so "could … undercut" its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between "what is truly national and what is truly local."" Of course since ANYTHING could arguably undercut federal regulation, that line is, in fact obliterated.
So Raich would have to be overruled 1st before a federal abortion ban could be attacked. We already have an indication that Thomas does not have the votes for that, because in STANDING AKIMBO, LLC v. UNITED STATES Thomas tried to overturn Raich, and he couldn't even get 4 votes for review.
In addition to that, the Republicans already passed the federal Partial-Birth Abortion Ban Act which the conservatives on the Court, including Thomas, upheld in Gonzales v. Carhart. Thomas weaseled around the commerce clause issue by saying that since the parties didn't bring it up, he didn't have to consider it, which is bullshit: Thomas knows that he has an obligation to enforce the Constitution and its limitations on Congress whether the party challenging the law makes the argument or not. The Constitution does not disappear because a party negligently fails to make an argument. The liberals, being ideological jackasses, didn't want to mention the commerce clause anyway (libs WANT unlimited federal power and hate federalism) and dissented solely based on Roe/Casey.
It's smart for them in my opinion. The Republicans have a structural advantage in the Senate. They will likely retake the Senate and keep it for most of the time. Ergo, Democrats will want to have the filibuster around rather than not.
But they also need to show their base that they at least tried to codify Roe.
Does anyone have the legal chops to explain to me how codifyiing Roe or an abortion ban does not violate federalism, btw? I never see anyone say that it would, but it seems pretty open-and-shut to me.
Ben Shapiro has been making this argument pretty strenuously lately, but it's not correct under the current law. Current controlling law is the bullshit Raich case, which held that the federal government could override state weed legalization laws under the interstate commerce clause, even when the weed in question (growing it for home use) was non-commercial and non-intrastate, because it might AFFECT interstate commerce somehow. (because if you didn't grow weed, you might buy it, and the seller might have obtained it from out of state)
Under that logic, the federal government's power is unlimited, since EVERYTHING could be argued to somehow affect interstate commerce. Federalism is already dead under Raich.
Thomas dissented to Raich, but it was 6-3 and even Scalia concurred with the majority, writing "Congress may regulate noneconomic intrastate activities only where the failure to do so "could … undercut" its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between "what is truly national and what is truly local."" Of course since ANYTHING could arguably undercut federal regulation, that line is, in fact obliterated.
So Raich would have to be overruled 1st before a federal abortion ban could be attacked. We already have an indication that Thomas does not have the votes for that, because in STANDING AKIMBO, LLC v. UNITED STATES Thomas tried to overturn Raich, and he couldn't even get 4 votes for review.
In addition to that, the Republicans already passed the federal Partial-Birth Abortion Ban Act which the conservatives on the Court, including Thomas, upheld in Gonzales v. Carhart. Thomas weaseled around the commerce clause issue by saying that since the parties didn't bring it up, he didn't have to consider it, which is bullshit: Thomas knows that he has an obligation to enforce the Constitution and its limitations on Congress whether the party challenging the law makes the argument or not. The Constitution does not disappear because a party negligently fails to make an argument. The liberals, being ideological jackasses, didn't want to mention the commerce clause anyway (libs WANT unlimited federal power and hate federalism) and dissented solely based on Roe/Casey.
Did Lincoln violate federalism?
Any particular examples? I'm pretty sure he was better behaved than Wilson.