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Comment by cdot2 | Hacker News Reader

The supreme court ruled that abortion is a state issue. Any law passed by congress would be struck down by the same ruling.

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If the US Congress passed an amendment that stated abortion is legal nationwide, then the Supreme Court would not be able to strike it down as that would be the new federal law.

Is a constitutional amendment different than a federal law when it comes to how it’s treated by the SCOTUS?

Amendments and laws are the same thing, so no. The Constitution can refer to the original laws, or the collection of original laws plus all the new ones.

When Congress passes a law, the law (sometimes referred to as the Constitution) gets amended, hence it is also referred to as an amendment.

Edit: ignore this comment, my information was incorrect!

This is incorrect, at least in the US. A Constitutional Amendment requires the affirmative consent of 3/4s of the states for ratification, it cannot be done unilaterally by the US Congress. The Federal laws are considered the lesser laws and the Constitution the highest law.

There is a big big difference legally in the US between an Amendment and something in the USC

Thanks, got to learn something new today.

You’re conflating constitutional amendments with amendments to congressional bills. They’re very different things.

Yes, but it’s subtle. The mandate of SCOTUS is a check against the other branches of the government to ensure they’re following the Constitution. By passing a Constitutional Amendment, it essentially makes the contents of such inherently constitutional. A Federal law could be (and has been) struck down as being unconstitutional.

I see. I’m probably jumping the gun here, but if such a federal law were to be passed is there something in the Constitution that would disallow it? I suppose it depends on the exact wording and so on?

Generally speaking, a Federal law would only be struck down if its intent or wording specifically violates a clause in the Constitution or its Amendments. So, it really depends on how its worded or what its intent is. I think it's pretty clear that Congress has the Constitutional authority to pass environmental regulations and could extend the EPA's mandates or legislatively codify EPA regulations such that they become law, because they have to do primarily with things which are commerce across state lines and national borders (e.g. where energy originates and where its expended are across borders).

Essentially the same justification for why Congress could create the EPA in the first place allows them to codify any regulations as law or to extend the EPA mandate. What cannot happen is the EPA unilaterally deciding to overreach its mandate, because its taking actions with the force of law but without any check/balance. The Constitution is quite clear that laws are the purview of the Legislative, not the Executive, and the EPA is a function of the Executive.

Yes. A constitutional amendment is constitutional by definition. It’s the very thing SCOTUS is tasked to protect.

They could rule the law to be unconstitutional. And they would do just that.

It is not at all obvious that this is true. I think it's highly unlikely given that the federal government has almost unrestricted ability to pass laws about personal rights (either strictly or in practice, see the federal drinking age of 21, smoking, etc).

Even if it was, there's no reason not to test it.

I agree that it’s not obvious that such a law would actually be unconstitutional. I just think this court has become an unapologetically partisan body.

It’s not unrestricted. For example, drinking age is not federally set for the states.

But states that don’t set their drinking age to 21 lose 8% of their highway funding.

By now, every state is in compliance, but some held out for years, and they could decide to change it in the future and forfeit the money.

So you want for women to have their basic rights for us to go through a constitutional amendment path? Interesting. This feels like fascism through paperwork.

You can say "I don't like X". You don't have to say every is "Fascism". It's ok just to be upset and not like something.

Fascism by the way would be rule by fiat - eg a King or a Dictator can just declare new law: "I declare all Hamburgers shall now be served with bacon and anyone who fails to do shall be executed".

Writing down laws and having a neutral body interpret them is a really important part of fair forms of Government (but not unique to Democracy). There is no defense to a fiat in a Dictatorship but that is a defense in eg Democracy. The publishing, disseminating and authority of rules is the basis of a fair form of government.

Where is this neutral body? Half of the court was explicitly groomed to take a partisan stance. They even have the ability to choose their own cases, plus a shadow docket.

Having a body made up of two opposing sides is generally how we build neutral bodies.

The liberal justices are not a beacon of neutrality - they lean towards liberal policies and expansionist interpretations the same way the conservative justices lean towards conservative policies and paring down the Fed.

I mean, this is a literal historical lesson.

Fascism mixed with bureaucracy is extremely powerful and extremely difficult to fight.

Hopefully this article can shed some light on it for you.

https://www.deccanchronicle.com/opinion/columnists/290919/bu...

This is what I view is happening in the US.

Single dictators don’t mean fascism. That’s an extremely simplistic and playground view on fascism. Heck, single dictators are much easier to combat than democratic & bureaucratic fascism.

This isn't some kind of new legislative process. This has literally been the law of the land since the constitution where it's described.

And I'm sorry but I'm going to reject the opinion column of a small newspaper as a source.

You're right in that Fascism is not just composed of single dictators but you are confusing the Rule of Law with beaucracy. Having a high court and requiring laws to be explicit is not "Fascism", it is literally the basis of the legal system.

are you under the impression that Germany didn’t have a “rule of law” when nazis were in power then?

A “rule of law” is a tool that can be used for evil. I’m not sure why we’re being blind to this?

I did not write anything about what I want or do not want.

That’s not exactly true. Congress can and has passed laws that apply to and override state law. Take minimum wage for example (fair labor standards act of 1938). In your particular example, there are no federal laws so it defaults to the states.

On what basis is this claim plausible?

In my understanding -- and I've read good chunks of the leaked Dobbs opinion -- the above claim is not true. The Dobbs decision's reasoning is largely based on a lack of clear federal legislation saying that abortion is legal.

you are correct that the dobb's ruling does not restrict federal abortion regulation, but it is an open question of whether this court would overturn federal abortion legislation as not being related strongly enough to interstate commerce.

Of course that ruling should cut both ways and eliminate the possibility of a federal ban as well, but as we've seen the majority is willing to overturn precedent both as old as 50 years and as young as 2 years (see Gorsuch dissent on Oklahoma v. Castro-Huerta) so its possible they would find the rational to uphold a ban even if they strike down a law mandating access.

They ruled that there is no constitutional guaranteed right to abortion, and in lieu of any federal legislation the decision defaults to the states. They did not rule that the federal government cannot have a say on abortion.

> The supreme court ruled that abortion is a state issue. Any law passed by congress would be struck down by the same ruling.

Is it? Then why am I reading news today about the Democrats wanting to suspend the filibuster for a federal abortion law?

The court ruled in Dobbs that the decision reached in Roe v Wade was improper because there is no right to privacy "deeply rooted" in the Constitution or traditions of the United States, which basically means that if the court sticks with this definition they get to roll back any decisions that they don't like, disregarding two hundred years of precedent.

The fundamental problem is that large important social policy decisions have been made as court cases rather than legislation for the past 50 years. If Congress actually made laws that explicitly granted rights to the people then we wouldn't be in this situation, but by passing the buck to the court they can claim that problems have been solved without actually having to get their hands dirty or face their constituents.

Roe v Wade was the court case giving a federal right to an abortion, that was struck down so it became a state's rights issue bc the federal gov't itself never passed a law guaranteeing the the right to an abortion. one major piece of criticism you'll hear again Democrats is that they have taken too much comfort is court precedent then actually passing laws when they were in power

Because they are pandering for votes. They know that the average citizen doesn't know that the law would be deemed unconstitutional based on the most recent ruling.

If you’re talking about the decision overturning Roe, it has literally nothing to do with whether a federal abortion law would be constitutional.

The Dobbs case has everything to do with whether or not a federal abortion law would be constitutional. The court determined on 10th amendment grounds that the constitution was silent on abortion. Therefore, that power belongs to each state. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

They ruled that the constitution does not confer the right to an abortion. That’s it.

The constitution does not confer the right to clean water and yet, it’s not unconstitutional for the federal government to make laws regarding clean water standards.

Dunno why you're being downvoted. This is the likeliest scenario; passing and ratifying an Amendment codifying Roe is next to impossible.

No. They ruled it isn't a constitutional right. Therefore it can definitionally be legislated at the State level.

Whether it can be legislated at the Federal level is a completely different question.

I upvoted, because I heard the same, and downvoting because of reality (no longer the fed's jurisdiction) is not fair.

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