Alan Zendell, September 10, 2021

The Federal Supremacy Clause of our Constitution “establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government’s exercise of its constitutional powers…it does not, however, allow the federal government to review or veto state laws before they take effect.” The Biden Administration, in the person of Attorney General Merrick Garland has decided to use this clause to attack state laws and governors’ executive actions that he believes deprive Americans of exercising their constitutional rights.

The opening salvo was fired yesterday when DOJ sued the State of Texas over its new law that prohibits abortions after six weeks of pregnancy and deputizes the entire state to report on anyone thought to be “abetting” a woman attempting to have one. It also offers bounties to anyone willing to spy on family or friends, a favorite tactic of dictators everywhere. Combined with Texas’ new open carry laws for firearms…I can’t even finish this sentence.

The idea of the DOJ lawsuit is that the Texas law denies women’s constitutional rights by violating fifty years of legal precedents that established their right to end unwanted pregnancies. A lot of anger was directed at the Supreme Court for refusing to enjoin the Texas law from going into effect, and the majority of Americans who believe in a woman’s right to decide what is best for her own body took that decision as an ominous warning that Roe v. Wade was about to be overturned.

Given that the conservative majority on the Court claim to be originalists, I believe that’s an over-reaction. The Court’s refusal to delay the implementation of the law falls within the dictate that the federal government cannot review or veto state laws before they take effect, as noted above. The true test of the Court’s position on Roe will emerge as countless challenges to Texas’ law come before it in practice.

After President Biden declared an all-out offensive to eradicate COVID, yesterday, if governors and state legislatures continue to obstruct the administration’s efforts to protect us, I expect the federal supremacy clause to be used to force them to comply with federal requirements. If recalcitrant governors and legislators attempt to undermine the Biden Administration’s efforts to vaccinate our population and protect Americans with mask requirements until enough people are vaccinated to make schools, workplaces, and entertainment venues safe, the DOJ will use a similar argument to attack those actions.

It’s right there in the first sentence of the Preamble to the Constitution. The Founders’ overall intent was to provide for the common defense and promote the general welfare of all Americans. Do those words apply to defending Americans against a deadly pandemic and a woman’s right to control her own body? COVID has already killed more Americans than any war since World War II, and far more than all foreign-inspired terrorist attacks combined, including nine-eleven.

How the Court’s originalist philosophy translates into today’s values remains to be seen. Laws evolve over time. What does it mean to adhere to the original intent of the Constitution in an environment that could never have been envisioned by the people who wrote it? The Founders couldn’t have imagined today’s world, in particular the state of medical science. When the Constitution was drafted there was no defense against plagues and pandemics. You lived or died based on the whims of fate as people didn’t even understand the concept of viruses and deadly bacteria. As for abortion, rape was rampant and even in the case of normal, desired pregnancies, millions of women died giving birth. Should a conservative interpretation of the Preamble be based on sound principles, protecting life, and science or politics?

The hyper-partisanship in our country today is mostly about people with obscene amounts of wealth fighting each other for power. That should not be what drives the Supreme Court. Justices on the Court have already achieved their life’s ambitions, and serve lifetime appointments. They should be able to put aside personal biases and religious beliefs. They should not be swayed by political pressure, either, and they usually aren’t. Take Chief Justice Roberts as a case in point.

Governors like Ron DeSantis (R-FL) and Gregg Abbott (R-TX) have framed our public health emergencies as battles for states’ and individual rights. It’s an absurd argument motivated solely by their need to pander to Trump’s base, because that’s where they’ve bet their future ambitions. I believe the Supreme Court is better than that. They understand their role as the last bastion of sanity. They also understand that if they succumb to politics, our “democracy” is doomed. Let’s wait and see.