osewalrus (osewalrus) wrote,
osewalrus
osewalrus

Carhart follow up

Actually, I'm not sure why this is a legal statute as a mater of Tenth Amendment/Federalism jurisprudence. What exactly is the federal interest Congress is protecting here? the opinion speaks about "protecting the ethics of the medical industry" and protecting the preborn and so forth. But how is that different from a federal gun control scheme that mandates gun free zones around schools (U.S. v. Lopez), or requiring local police to do background checks (Printz v. U.S.).

Of course, it does not appear that anyone actually raised the federalism question, so the court can be excused for its failure to raise the objection sua sponte. Indeed, Justices Scalia and Thomas filed a separate concurrence to emphasize that the question was not presented and the court does not pass upon it.

Still, for folks looking for arrows for the quiver, cultivating the libertarian anti-centralized government crowd may be one possibility.
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