Kyle Roat, Associate Member, University of Cincinnati Law Review
Introduction
The federal district court for the Eastern District of Michigan recently handed a significant victory to Dr. Jumana Nagarwala and her seven co-defendants in their first-of-its-kind prosecution for violations of 18 U.S.C. §116(a) which creates a crime punishable by up to five years in prison for any person who “knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not attained the age of 18 years.”[1] The court granted the defendant’s motion to dismiss all charges related to the female genital mutilation (FGM) statute, holding that Congress did not have the constitutional authority to criminalize the procedure.[2] The government alleges Dr. Nagarwala performed violative procedures on nine young girls at a clinic in Livonia, Michigan owned by co-defendant Dr. Fakhruddin Attar.[3] Also charged are two persons alleged to have assisted the physician in the procedures and the mothers of the alleged victims.[4]
The government argued two bases for constitutional authority: the Necessary and Proper Clause and the Commerce Clause.[5] This article will review the court’s analysis of the government’s arguments with an emphasis on the Commerce Clause argument in Parts II and III; Part IV of this article will argue that the court should have sustained the statute as a permissible regulation of interstate commerce.
Necessary and Proper Clause
The government first argued that Congress had the authority to enact 18 U.S.C. §116 under the Necessary and Proper Clause in conjunction with the treaty power vested in the President and the Senate.[6] Specifically, the government relied on the International Covenant on Civil and Political Rights (“ICCPR”), Articles 3 and 24.[7]
Article 3 of the ICCPR calls on signatories to “ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.”[8] The court dismissed this argument with almost no analysis, asserting there was no rational relationship between Article 3 and the FGM statute.[9] Article 24, which “calls for the protection of minors without regard to their race, color, sex, or other characteristics” was “arguably closer” in the court’s opinion, but ultimately the court deemed the connection between the treaty and the FGM statute too tenuous.[10]
In addition to dismissing the government’s argument that the statute was a necessary and proper effectuation of the ICCPR, the court noted that even if it were proper, federalism concerns would prohibit Congress from enacting the statute.[11]
The Commerce Clause
Most of the court’s opinion is devoted to the government’s argument that the FGM statute is a permissible exercise of the power to regulate interstate commerce. Before addressing the case at hand, the court endeavored to identify the applicable principles in Supreme Court and 6th Circuit cases with an expansive review of case law. The court drew on eight cases relevant to the FGM statute, the most important of which are discussed below. From Wickard v. Filburn,[12] the court took the principle that Congress’s power under the Commerce Clause could reach personal economic activity even if its individual effect on interstate commerce is trivial.[13] Similarly, “[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class.”[14]
As to the regulation of illegal commercial activity, the court noted that Congress’s regulatory power is indifferent to whether the market regulated is lawful or unlawful.[15] Finally, United States v. Lopez[16], United States v. Morrison[17], and Norton v. Ashcroft[18] provided the framework for the court’s analysis.[19] First, the court asserted that all parties admit the activity regulated could only belong to the third Lopez category, “activities having a substantial relation to interstate commerce,”[20] which Congress may only regulate when the activity regulated ‘substantially affects’ interstate commerce.[21]
To determine whether FGM substantially affects interstate commerce, the court applied United States v. Morrison as interpreted by the Sixth Circuit in Norton v. Ashcroft.[22] Norton drew four items to be considered from Morrison: whether the activity is economic; whether the statute has a jurisdictional element limiting its reach; congressional findings on the activity’s effects on interstate commerce; and the connection between the activity and interstate commerce.[23]
Regarding the Morrison/Norton factors, the court first denied that FGM is not economic or commercial activity because the government was unable to prove that a market existed for the procedure.[24] The court’s skepticism of FGM as an economic/commercial activity was driven in part by the fact that the case at bar was the first prosecution under the statute since the law’s passage in 1996.[25] The nine children allegedly harmed by the defendants “[are] not a market, but a small number of alleged victims.”[26]
The court also dismissed the government’s argument that the banned procedure is a kind of healthcare which would place it within the reach of Congress’s power, holding that FGM is “a form of physical assault, not anything approaching a healthcare service.”[27] The court’s final argument against FGM as an economic activity was the lack of evidence that the procedure was done for compensation.[28]
The court noted the lack of a jurisdictional element in the FGM statute because it did not require proof that the victims or the provider traveled in, or had any effect on, interstate commerce.[29] The government was unable to provide any support for its position in the form of congressional findings or “other evidence.”[30] Accordingly, because the proscribed conduct is not economic in nature, the statute lacked a jurisdictional limit, and the congressional record did not contain findings in support of the application of the Commerce Clause,
Analysis & Argument
As to the application of the Necessary and Proper Clause, in conjunction with the Treaty Power, the court’s analysis is likely correct. Because the ICCPR does not expressly call for the prohibition of the procedures covered by the FGM statute, Congress likely did not gain the authority to institute such a broad ban. Even if the treaty expressly required signatories to ban the practices enumerated in 18 U.S.C. §116, implementation of such a ban on that basis would have to proceed on a state by state basis.
Where the court has erred is in its analysis of the Commerce Clause. The government’s inability to prove an interstate market for female circumcision is irrelevant to whether Congress has the authority to regulate the practice under the Commerce Clause or its economic nature. It may generally be the case that Congress does not begin regulating a new market until it has become established but there is no constitutional requirement that Congress sit on its collective hands waiting for an undesirable interstate market to develop before legislating against it. The Commerce Clause gives Congress the power to regulate, suppress, or promote both existing and potential markets. Whether it is wise for Congress to prematurely legislate against a potential market is a question of policy, not Constitutional authority. The Constitution does not presuppose the existence of an interstate market for a good or service in its grant of regulatory power to Congress.
But the court’s error on the scope of Congress’s regulatory power only matters if the procedures banned are indeed a form of economic, commercial, or healthcare activity. On this issue, the court is also incorrect. Without disputing the court’s characterization of FGM as a physical assault, the procedures criminalized by the FGM statute are a medical service. First, the statute clearly contemplates that circumstances may arise where a banned circumcision could be medically necessary.[31] Second, the procedures allegedly orchestrated by the defendants were performed by a physician on the premises of a clinic operated by another physician.[32] These procedures had all the trappings of a standard medical procedure whether or not they had a legitimate medical purpose and for better or worse, medical services in the United States are quintessentially economic/commercial activity. If these procedures belong to the class of medical services and medical services are a commercial activity, it is irrelevant whether the defendant mothers compensated the physician for the procedures because the court is not entitled to excise a trivial set of occurrences of the activity if Congress can in fact regulate it.[33]
If courts cannot be persuaded to sustain 18 U.S.C. §116 under the Commerce Clause, a revision of the statute may resolve the flaws perceived by the Nagarwala court. Restricting the scope of the statute to apply only to the transportation of minors by the channels of interstate commerce for the purpose of obtaining one of the proscribed procedures, Congress could avoid the kind of inquiry triggered by the Nagarwala defendants’ motion to dismiss.
Conclusion
Whether the Sixth Circuit or Supreme Court eventually overturns the district court’s decision in United States v. Nagarwala, the defendants have likely won only a minor reprieve. As the court notes in its conclusion, twenty-seven states have passed similar statutes banning these procedures and even in the absence of a specific statute, performing these procedures in the absence of medical necessity likely satisfies the elements of other crimes.[34]
[1] 18 U.S.C. §116(a) (Lexis 2018).
[2] United States v. Nagarwala, 2018 WL 6064968 (E.D. Mich. 2018) at *13.
[3] Id. at *1
[4] Id. at *1.
[5] Id. at *2.
[6] Id. at *2.
[7] Id. at *2.
[8] Id. at *2.
[9] Id. at *3.
[10] Id. at *3.
[11] Id. at *3.
[12] 317 U.S. 111 (1942).
[13] Nagarwala, 2018 WL 6064968 (2018) at *6.
[14] Id. at *6, quoting Perez v. United States, 402 U.S. 146 (1971).
[15] Id. at *10, quoting Gonzales v. Raich, 545 U.S. 1 (2005).
[16] 514 U.S. 549 (1995).
[17] 529 U.S. 598 (2000).
[18] 298 F.3d 547 (6th Cir. 2002).
[19] Nagarwala, 2018 WL 6064968 (2018) at *7-9.
[20] Id. at *7, quoting United States v. Lopez, 514, U.S. 549 at 559 (1995).
[21] Id. at *7.
[22] Id. at *9.
[23] Id. at *9.
[24] Id. at *11.
[25] Id. at *11.
[26] Id. at *11.
[27] Id. at *12.
[28] Id. at *12.
[29] Id. at *12.
[30] Id. at *12.
[31] 18 U.S.C. §116(b)(1) and (2).
[32] Nagarwala, at *2 (E.D. Mich. 2018).
[33] Id. at *6, quoting Perez, (U.S. 1971).
[34] Id. at 13.
