Democrats want to codify Roe v. Wade with federal legislation as it nears potential reversal in the Supreme Court, but Jonathan Turley warns such an effort may not be so simple.
But Turley believes such an effort could end right back at the Supreme Court depending on how Democrats attempt to craft the legislation. He pointed to multiple cases in which the Supreme Court ruled that the federal government could not compel states to enforce federal mandates, including instances in which the federal government threatened to withhold funds from states.
"In Independent Business v. Sebelius , the court held that the federal government could not compel states to expand Medicaid by threatening to withhold funding for Medicaid programs," he continued."In Murphy v. NCAA , the court again warned that Congress could not take any action that ‘dictates what a state legislature may and may not do’ in such policy or program disputes.
"I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it," Thomas, who was joined in the opinion by Scalia, wrote.Turley agreed that the commerce clause could present an avenue for federal lawmakers.
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