Thread by @JoshMBlackman

1/ SG Francisco notified Congress that DOJ would not defend the constitutionality of a federal prohibition on female genital mutilation. (FGM)
justice.gov/oip/foia-libra…

2/ This statute, which enacted before Morrison, lacked a jurisdictional element, or "hook." The law merely prohibits local crimes of violence. Congress lacks the power to enact such a law under its Commerce and N&P Clause powers.

3/ Had DOJ appealed, there is a very strong chance the 6th Circuit, and #SCOTUS, would have affirmed, and in the process, further curtailed federal power. This decision is eminently reasonable.

4/ Moreover, DOJ proposed an amendment to the statute to add a jurisdictional element, and remedy the constitutional defect. Much of the criticism from this decision is completely unfounded.

5/ The most fascinating element of this letter is a subtle attack on Missouri v. Holland. The district court also found that the statute could not be supported by Congress's powers to "effectuate an international treaty."

6/ Noel Francisco wrote: "Thus, even maintaining the full continuing validity of Holland, the Department does not believe it can defend Section 116(a) on this ground." The SG is strongly suggesting that Holland is not valid. (I agree). #SCOTUS rejected @profnqr attack in Bond.

7/ @marty_lederman offers similar speculation of why DOJ did not risk appealing fgm case--the gov likely would have lost

https://twitter.com/marty_lederman/status/1117476622976811008?s=19