Thread by @marty_lederman

1/ Last week the Solicitor General informed Congress that DOJ won’t appeal a district court judgment declaring that Congress lacked the power to enact the federal law prohibiting female genital mutilation. #FGM

justice.gov/oip/foia-libra…

2/ My friends and colleagues @neal_katyal and @jgeltzer have strongly condemned DOJ's decision; but I agree w/@walterdellinger that DOJ did the right thing here.

nytimes.com/2019/04/12/us/…

3/ To be sure, I think Congress had authority to enact the #FGM law pursuant to its commerce power . . . and probably also pursuant to its power to enforce the 13th Amendment (because this horrific act is effectively a form of branding ...

4/ ... that could fairly be deemed a badge or incident of slavery—see the OLC hate-crimes opinion I cite below). Therefore I think it’s not technically correct to say, as the DOJ letter does, that there aren’t any “reasonable” arguments to be made in defense of the law.

5/ Nevertheless, it’s a virtual certainty—or a huge risk, at a minimum--that the current SCOTUS majority would reject these theories of congressional authority, and in so doing would issue an opinion that’d be very damaging to congressional power.

6/ (As for Congress’s treaty-implementation power: There's no serious question that Missouri v. Holland was correctly decided, but this would be a terrible posture in which to invoke it, ...

7/ ... as it'd be very hard to convince the Court the FGM statute is tailored to ensure U.S. compliance with the ICCPR.)

8/ The Nagarwala case is the only one in which the government has used the FGM statute to secure a conviction, and therefore refusing to appeal has a minimal practical effect—indeed, no effect at all if the appellate courts were to affirm, which they almost certainly would.

9/ And, most importantly, the statutory “fix” DOJ has proposed to Congress (see the last few pages of the attachment to the letter) is excellent: It’s comprehensive and should ensure the federal government’s ability to prosecute most cases of FGM . . .

justice.gov/oip/foia-libra…

10/ . . . —including virtually all that aren’t prosecutable under state law. (I’d recommend at least one change to the DOJ fix, however: deletion of the second half of proposed section (e)(3), which is unnecessarily restrictive.)

11/ Indeed, the DOJ fix is very similar to the one we in OLC proposed (see link to an opinion I signed, attaching a 2000 opinion), and that Congress enacted, as part of the Matthew Shepard Hate Crimes Prevention Act.

justice.gov/sites/default/…

12/ In stark contrast to its recent outrageous positions in the ACA case in Texas, then, this is a fine example of a wise DOJ judgment—to amend rather than defend a statute so as to preserve its constitutionality and strengthen the odds the current Court would uphold it.