SIO175: Andrew Torrez on the FGM Court Decision

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:29 Thomas: And, welcome to Serious Inquiries Only, this episode 175, I'm Thomas Smith and this week we're going to do opening arguments here on Serious serious inquiries only. It's like a throwback to back before we started OA when Andrew would come on and break stuff down for us on this show. And If you'll remember, we had a caller the other week who asked about the FGM decision recently handed down, and I, you know, I, I read over it briefly, but I, of course, I'm not the expert, Andrew is, and, I am so glad he was willing to come on and break this down for us. I think there's a lot of maybe misinformation in various sources on this one, so it's great to have a lawyer that we can trust to tell us what really happened, and who isn't trying to push a certain agenda of some kind, and so here we go, let's talk to Andrew and learn more about what happened in this case. Peace.

0:01:30 Thomas: And it's Andrew Torrez back on SIO. Good times. I love when we do this. It's never going to be as often as back before OA, but that's okay. We have OA every week. How are you doing, Andrew?

0:01:42 Andrew: Uh, it is fantastic, like I said, I always love coming back to the Mothership, so, uh, so thanks for having me.

0:01:48 Thomas: I'm happy to have you. I mean, there's no end to the legal questions that you are answering over on OA all the time, and in Fact, it's worse than no end. You don't even make progress, really. It's all, it's just it's like, when you, yeah, it's like Fantasia and the questions are the brooms, you know, it's Exactly that.

0:01:57 Andrew: Woo! Yeah, smack one down, ten tickets place, yeah, we, we actually had, we-we

0:02:13 Thomas: Exactly. I Saw That movie When I was like six. And that horrified me, oh my god, I was scared of that movie.

0:02:21 Andrew: Actually had a live Q&A question of, uh what's the oldest thing on your whiteboard, and we definitely have OA Things on the whiteboard from 2016. So, yeah.

0:02:29 Thomas: Yes. Back, remember, okay guys, remember the rule of law, we had questions Back when that Mattered. They're like, can You imagine If someone Violated unrelated campaign finance. Yeah. But no, today we had, we had a, I had a caller, you know, ask about this FGM ruling. And, you know, I did just a quick reading of a news story. I wanted to save the real analysis for you. But it's interesting. It's something I've talked about on the show. You know, I've had a few guests on who, who are in the area of FGM internationally and, and stuff. But this was something that I think was perhaps at times badly reported and at times misrepresented. And I think a lot of people are unsure what this means, you know. So what happened? And let's start breaking it down, getting the real details from a lawyer you can actually trust, unlike Alan Dershowitz.

0:02:33 Andrew: Oh, man. Good times. Good times.

0:03:23 Andrew: So, so here's what happened. Congress passed a law in 1996 that is 18 U.S.C. 116 that prohibits as a matter of federal law female genital mutilation, um, that law says, uh, whoever 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 shall be fined under this title or in prison not more than five years or both, so, felony. Um, I had to look up the word infibulate, uh, Which I Don't Yeah, it's a special word that was coined just for female genital mutilation. It means to close off or obstruct the genitals by sewing together. Yeah.

0:04:05 Thomas: Yeah, I've never heard that one.

0:04:17 Thomas: Yeah.

0:04:18 Andrew: So disgusting practice. Um, the question is, uh, in, in the law is whether that can be made a federal crime. Um, it seems weird. Uh, but, but remember that, right. States have plenary power, right? So, so, uh. Let me.

0:04:36 Thomas: That was kind of, Know, yeah, that was what I gathered from the article. I tried to find a good source on it, and it seemed as though the question was, can they actually do this? So that's so you're talking about. So what can you define plenary power for us, uh, people who, I know what it is, I'm sure, but, uh,

0:04:39 Andrew: Yeah. Yeah, sure. So a state can pass a law on anything, right, so long as it does not violate the Constitution of that state or the federal Constitution. Right, that's that's what states do. Right, that's what plenary means, right, over anything, anything. Um, so for example, murder is not a federal crime. Right. It doesn't mean that the U.S. government doesn't think, you know, thinks that the, you know, the purge is a good thing, or, you know, doesn't despise Murder.

0:05:20 Thomas: Right, yeah, if it weren't for those pesky states. The uh, the federal government is like, gosh, we want murder, but we just don't seem to have the power.

0:05:22 Andrew: Right. Yeah. Yeah. And and and that's true, right? So, um, Congress has enumerated power. So rather than having, so plenary powers are just residual powers, you, you get it because you're the state. Um, the U.S. Congress only has the enumerated powers that are given to it in the Constitution. And and I know what you're thinking, which is, um, but I listen to my libertarian friends all the time, and they tell me that, you know, there's no specific power that says the government can regulate the internet, or can, you know, set uh minimum wage laws, or whatever. And and and and the answer to that is that, yeah, all of that. That's exactly right.

All of that has to be traced back to the Commerce Clause. Right. So obviously, Congress can regulate interstate commerce. That is one of the things that was specifically authorized, you know, that it was specifically authorized to do in the in the Constitution. Is there are two justifications given for this FGM law. And the first is, in fact, in the commerce clause. And and so so I want to evaluate that. I want want to put that in kind of the proper context, because I think this is a close case. I'm not surprised in the result. So the argument that this case falls under the Commerce Clause is that there were nine victims who were charged.

0:06:05 Thomas: Interstate commerce, oh

0:07:02 Andrew: There were nine victims here. There There were four parents who were charged. It is not clear because the court very properly, you know, does not take great pains not to identify the victims. Right.

0:07:13 Thomas: Like sealed the records or whatever? Yeah, yeah, yeah.

0:07:16 Andrew: Like that. So we know that four of the defendants that were charged were the mothers of the victims, and they are named, and they brought their daughters to the clinic for the procedure. And we know from elsewhere in the case that there were nine girls who were brought in, all of them under the age of 18. I infer all of the pre-pubescent, but that is not clear from the case, but from the practice, yeah.

0:07:25 Thomas: Hmm. Okay. Yeah. And actually, I'm pretty sure that it just depends on kind of the cultural practices. It could be, they often do it anywhere from when they're newborn to all the way up to, you know, puberty and that kind of thing. So, it doesn't necessarily happen always at the same time, depending on what the cultural practice is. Can

0:08:03 Andrew: Yeah, so the argument is five of these nine brought their daughters across state lines, Illinois into Michigan, therefore there is an interstate market for female genital mutilation, and that therefore the Congress has the right to regulate that. That, um, yeah.

0:08:26 Thomas: I ask a question about this? This always confuses me. And I think it's because, you know, there's so many different ways people interpret this. So when you talk about Congress gaining the power to regulate something because of interstate commerce, is it just if it's conceivable that one person, you you know, could cross state lines to do something. Therefore, they can write a law about the whole thing? Or like as long as the person didn't cross state lines when they did this thing, they haven't violated it? You know what I mean?

0:08:28 Andrew: Yeah.

0:09:01 Andrew: No, that's, that's a great question, and um, and it's neither of those things, right? So it's not like, uh I can make a Dukes of Hazzard reference that you won't get because it predates you by about 10 years, but No, It

0:09:13 Thomas: Yeah, I just know there's a car and there's something. Some old racists are driving a car or something like that, right? Right.

0:09:15 Andrew: Yeah, There was They were always like Yes, Exactly right, but there was always a big thing of like, oh, you just crossed over the county line. And now my jurisdiction is, that's not, the Commerce Clause doesn't work that way. Right. The Commerce Claws, read, Clause is Article One, Section Eight of the Constitution, Clause Three, which says Congress has the power, quote, to regulate commerce with foreign nations and among the several states and with the Indian tribes, end of quote. That's it. That's all it says. So then you look to the case law to say, is the thing you're regulating commerce between the states? Right. And to figure out whether something is commerce between states, there's a whole lot of different tests. But, but, you know, you cases that sort of set the polls here, right?

0:10:19 Andrew: The argument in favor of regulating FGM under the Commerce Clause comes from a 2002 case was a Sixth Circuit case, did not go up to the Supreme Court, the Supreme Court let it stand, called Norton v. Ashcroft. And that concerned concerned a federal law that prohibited the obstruction of abortion clinics. Right. And so, you know, you might think like, OK, that that seems to be sort of roughly analogous. And that case, the Sixth Circuit found that there were extensive congressional findings regarding the economically disruptive effects of clinic blockades and anti-abortion violence, that there is an interstate market for abortion, a national commercial market for those services.

0:11:11 Andrew: Anti-abortion protests burden interstate commerce, and that patients and physicians often travel interstate to obtain or provide abortion services, and that the protests sometimes cause clinics to close and for doctors to stop working in the field and to go across state lines. And so those were all findings made at the congressional level. And that's why the court upheld the Access to Clinics Act's regulating interstate commerce, even though, right, it might regulate that, that might apply to purely a person within the, you know, any one state blocking that clinic. The question is, can it be a federal law? If it can be a federal law, then it doesn't matter whether you've crossed the state lines or not.

And here, the court said, no, this isn't enough like the Access to Clinics Act because there are not comparable, yes, we know there are a couple, there are a handful of, and again, I'm not saying I agree with this, I am quoting or paraphrasing from the court here, that what What they're saying is there are. And in fact, let me let me read the language directly. So I'm not characterizing it. OK. And so this is page 26 to 27 of the opinion: "There is nothing commercial or economic about FGM. As despicable as this practice may be, it is essentially a criminal assault." And then it says, "just like the rape at issue in Morrison," which I'm going to talk about in a second.

"Nor has the government shown that FGM itself has any effect on interstate commerce, or that a market exists for FGM beyond the mothers of the nine victims alleged in the indictment. There is, in short, no rational basis to conclude that FGM has any effect, to say nothing of a substantial effect" and that's the test "on interstate commerce."

0:11:47 Thomas: Yeah.

0:11:56 Thomas: Gotcha.

0:12:13 Thomas: Right, right, right. Okay.

0:13:01 Andrew: The present case cannot be distinguished from this case, Morrison, that I'm about to discuss. As in those cases, FGM is a crime that could be prosecuted under state law. It is not part of a larger market and it has no demonstrated effect on interstate commerce. The Commerce Clause does not permit Congress to regulate a crime of this nature. So that was the Commerce Clause holding. And notice that, you know, they're absolutely right. I am shocked that Michigan does not have law prohibiting female general mutilation.

0:13:33 Thomas: That's what I was saying. Why don't all the, the state, step one is, okay, every state should have a log insist. That seems at a minimum.

0:13:38 Andrew: Yeah. Yes. That is if you are mad. So, you know, we talk about this sometimes. Right. If you're super mad about this decision and believe me, I understand why you would be. Then what You should callup your local representative in your state legislature and tell them to introduce a bill banning female genital mutilation.

0:13:45 Thomas: Yeah yeah.

0:13:58 Thomas: I can't imagine that would be that difficult a political lift, you know, like, I mean, yeah, it seems like it's just like an oversight.

0:14:00 Andrew: Yeah, I wouldn't think so. Yeah. It brings together an awful lot of people.

0:14:08 Thomas: Like, I, I mean, and that's part of what I was going to ask you later is just like, why now, and why, if, you know, it might just be if the law was on the books federally for so long, you know, states didn't bother because they thought it might work, you know, or is that, is that the kind of thing you think it might be weird?

0:14:23 Andrew: Well, the law has been on the books for a while, but I was unable. I did I did a quick look. I was unable to find any prior prosecutions that have been upheld under the law. Right. So, yeah, so it is weird. And you could interpret that in any number of ways. Right. From the lack of data, you could certainly interpret it as the practice is underground. And, you know, yep, yep.

0:14:49 Thomas: Or It Mainly Happened in the states that already had laws, maybe, because I think half of them do, roughly, pretty sure, could Be that. Yeah. Okay.

0:14:56 Andrew: It could be. But but I will tell you, right, the the court asks, and this is the language that I wanted to read. And again, I want to be 100 percent clear. I am quoting the court here, says this is not a market referring to the nine victims that are alleged in this in the superseding indictment, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute?

0:15:24 Thomas: Yeah. Oh, wow.

0:15:26 Andrew: Statute. So, yeah.

0:15:27 Thomas: So that tells you right there it is the first time. Okay, yeah. Well, I mean, I can see the point there, you know, like if it is something that is truly, maybe it's just not happening in the US as much as you might think or something. Yeah, like I said, maybe it's being prosecuted under the state law or something. But I see the argument.

0:15:48 Thomas: It's not prosecuted. There's only nine. And it's not something that seems to have the critical mass of interstate commerce to be a market. So I kind of see that argument. It's not, it's nowhere in there is there a pro-FGM argument. It's just saying it doesn't seem like this is something Congress should have the power to write a law about. So I don't know, it seems kind of reasonable to me. Am I crazy?

0:16:14 Andrew: Yep. I don't think you're crazy, but, but I want to give you the the counter argument, and I want to make you mad, because Look, so, right, the continuation of your argument is something that folks left and center have said since this case came down, which is, look, the The Commerce Clause has to mean something, right? It can't mean that Congress can do anything and call it interstate commerce. Then it would just be plenary power, right, like there must be limits. And this is not really about trying to regulate commerce. This is about trying to criminalize a grotesque practice that occurs within certain states.

And that's laudable, but it doesn't fit within the definition definition as as interpreted over time of what the Commerce Clause means. And I think there's a lot of merits to that argument. The case I told you to put a pin in, United States versus Morrison, ought to get your hackles up because it is what provides the precedent for how this court ruled in this case. And it's the same argument, but the practical consequences are, as I'm about to describe, which is in 1994, Congress under President Clinton passed the Violence Against Women Act. And for the first time, that law contained a provision that gave women who were the victims of gender-based violence a private cause of action against the perpetrators, right?

0:16:21 Thomas: Okay. Oh, sure. Right. Right. Okay.

0:18:07 Andrew: Right. It did a whole bunch of other stuff, too. But this was the the provision that was challenged. And it represents the really sad state of affairs at the state level with respect to how women who are the victims of sexual violence are treated. Right. So so this was really lauded as a as a really good of first step to give to give women an alternative parallel measure. Right. Because, you know, we we know all of the statistics that, you know, 84 percent of of of rapes go unreported and and and obviously crucial problem. And so that statute was immediately put to the test in a case involving a student at Virginia Tech, college student who was raped by two Virginia Tech football players.

Won't go into the details because they're gross, right? Violently raped. Raped, taunted, um, afterwards. School does nothing. Uh, and the football player, you know, the the football prayer who wasn't a senior, returned to the campus on a full athletic scholarship, which yet, which the victim learned about from ESPN. Uh, while the school was saying, "Oh, no, we take this seriously." You know, blah, blah. And then obviously she withdrew. I said ESPN, but it was from the Washington Post. I'm sorry. I pulled up the details now. But but but yeah. Right. Reads about it in the in the media while the school is saying, no. And then and then she dropped out of the school for totally

0:19:23 Thomas: Jeez. Oh my gosh. Oh, unbelievable.

0:19:53 Andrew: Understandable reasons. Right. Yeah. So she brought her charges against those two rapists under the Violence Against Women Act. And the Supreme Court held that provision of the Violence Against Women Act unconstitutional for the same reason. Right. Which is it was not intended to regulate an activity in interstate commerce, but was regulating a quintessentially state crime. And that and that the the intent there was to act because the states had not. Right.

0:19:54 Thomas: Yeah. Jeez. Yeah. Yeah.

0:20:31 Andrew: Because so

0:20:31 Thomas: So I guess There's something I'm not understanding fundamentally about constitutional law or something. I don't get, shouldn't there be some other way that Congress could do that? Like, can't the federal government grant human rights to its citizens? You know what I mean? Like, is it, do we only have the human rights in this country that they spelled out in the Constitution and then anything else that has to be a interstate market in order to, you know what what I mean because I I feel the same way with this FGM stuff, which is sure it might not be interstate commerce, but it's kind of like a human rights issue. Does the federal government not have the power, however it is, I don't know what it would be, but like to just say, hey, as a basic human rights issue, uh, you should be able to not, you know, have Fgum done to you or not, or have some some recourse when you're brutally raped, that kind of thing.

0:21:21 Andrew: I think your years of being on opening arguments are showing through here. That is, in fact, exactly the other argument that was made in the FGM case. And the technical way, but rejected, and the technicalway in which that argument was made, the way you put together the links in the chain is, okay, where do we find the ability for Congress to pass a law to protect human rights? And the argument that was advanced was Article 1, Section 8, Clause 18, which grants Congress the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution or government of the United States. And you say, wait, wait a minute. Like, what does that mean?

0:21:34 Thomas: Oh, okay. Yeah, that's really general. Yeah, I don't know what that means.

0:22:17 Andrew: And yeah, it really, really general. Right. Like what's necessary and proper. Right? And so the law is very, very clear that you don't independently get new rights under the necessary and improper clause. You have to tie them into a specific enumeration of something that the government has to do. And here what they said was, yeah, there are two treaty obligations that the government has to abide by that are necessary. So this would be necessary and proper to understand and enforce the federal government's obligations under two separate treaties. I'm not going to talk about the first one because it's really pretty tenuous.

0:23:06 Andrew: But Article 24 of the U.N. Declaration of the Rights of the Child says that every child shall have without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor on the part of his family, society and the state. And so the argument there was, yeah, look, this is meant to protect against discrimination against children. Right. In particular, this Is a procedure that is practiced on on young girls. And and if we are to say that that all children have an equal human right to be free from discrimination, which we have.

0:23:51 Andrew: And if the United States is to sign on to that, which we have, then this is necessary and proper to the enforcement of those treaty obligations. The court rejected that argument and the court rejected That argument.

0:24:05 Thomas: Man, well, I like that argument and I think that should have not been rejected. All I want to say is like, no one I hope should doubt either of us on what we want the end result to be, which is no FGM and women to have recourse when raped. I just don't think you should have to prove that there's a interstate market market to do either of those, you know what I mean, so like I don't, it seems so weird to me that that's what you would need to prove. You know, I feel like the federal government, one of the main things it should be able to do is guarantee a certain level of human rights no matter how much this individual state wants to screw you over. Uh, I don't think they should be able to beyond a certain line. And it's weird to me, I guess it's just a property of our constitution, our founding, and who knows, it could be tied to the fact that certain states wanted to be able to enslave a race of people, could maybe be tied that that the federal government wouldn't have that power. Okay.

0:24:06 Andrew: Yeah. Yeah. Of course. Yeah.

0:25:02 Andrew: Yeah, agree with that. Remember that we're you're sort of you're aligning a little bit over the distinction between a law and a constitutional provision. Right. Right. So what you have to do here in order for this criminal statute to be upheld. Right. Congress has to have the authority to pass the law that they passed. 18 U.S.C. 116. Is it possible that you could raise the argument that, and I guess you could do it maybe under a Section 1983 case? I mean, it's, I haven't thought about this. If this, if, if the Supreme Court were to, or, you know, the relevant circuit court of appeal were to hold that the 14th Amendment's guarantee of equal protection under the laws applied to these sorts of cases, then, you know, that would be a potential, right, a potential alternative finding. But it wouldn't save this particular law, right? Like in order to be sent to prison for five years or find a felony, right. Like you have to violate a law because, you know, we're a nation of the ostensibly a nation of the rule of law.

0:25:13 Thomas: Right. Yeah. Yeah. Yeah.

0:26:19 Thomas: And I guess another counter-argument

0:26:20 Andrew: And you can't just lock somebody up for for that. But

0:26:21 Thomas: Yeah. Yeah. Yeah. And I guess another counter argument is if they couldn't, if, if you can't even do it with murder, then what chance do you have for these other things? You maybe that, cause you're saying there's not, it's not like there's a federal murder law. So yeah.

0:26:23 Andrew: Yeah, nope.

0:26:36 Thomas: So maybe that's an,

0:26:35 Andrew: Nope. And I say that, and again, I say that because, you know, to emphasize, you

0:26:37 Thomas: Hmm. There's certain things. It's just assumed the States will all agree to enforce. Yeah.

0:26:44 Andrew: Would think, right? Yeah, you would definitely think that there would be state laws on that. It's why I deliberately went to the hard case, Right? Because, you now, we could have ended 15 minutes ago with, it should not be a challenge to get uh laws prohibiting female genital mutilation passed in all 50 states, um, It It, it, it, I don't think, and I, and I say that not, you know, proscriptively, right? I say that, uh, descriptively, right? Like, I think the fact that it hasn't been passed is because, um, you know, there was no awareness, uh, of this as an issue, you know, in certain communities, um, so that's the activist takeaway of, of what you do in this case.

Um, but the, the harder question, in, in my view, you know, goes back to the Morrison case and the, and the Violence Against Women Act, um, where there is resistance at the state level. Um, we have limited ability, right? For Congress to step in and go, okay, there's this local practice in this particular state that we think is terrible, and if you, you know, if you residents of that state won't take action against it, then, you now, we as Congress will. And Congress can't do that. They've got to have a hook. They got to a reason. They have to have a specifically enumerated provision in the Constitution,

0:26:56 Thomas: Yeah.

0:27:10 Thomas: It really shouldn't.

0:27:27 Thomas: Yeah, so

0:28:17 Andrew: However broadly interpreted, that enables them to do so. So that's where we are. Yeah,

0:28:22 Thomas: Where does that leave us with this case then? What what phase are we in? Is it, is the Supreme Court potentially in play here? Federal, where were we in the appeals process?

0:28:33 Andrew: We're we're nowhere in the appeals process. Right. So this was a trial In the District Court for the Eastern District of Michigan. The, that court has now dismissed out the indictment. Um, so there are two counts, there are counts one through six, which were related to, uh, the female genital mutilation. Um, there were two additional counts, uh, in the indictment that I don't know what they are. Right. They're not listed here because what the defendants did was they moved to dismiss all of the counts that related in any way to the FGM statute under

0:28:37 Thomas: Was, okay.

0:29:12 Thomas: Okay.

0:29:13 Andrew: The grounds that the FGM statue was unconstitutional. The district court judge has agreed with that position and thrown those out. So there are two, two options. Right. The federal government can accept that ruling and decide to go forward on only the other two counts against these defendants, against the defendants against whom they apply, because I imagine that whatever the remaining counts are that are probably I don't even want to speculate. Speculate.

0:29:36 Thomas: Maybe some sort of child endangerment or child abuse

0:29:39 Andrew: Yeah, I don't. Right. You know, we could speculate, but I don't know. I' m pretty confident they don't apply against the mothers. Right?

0:29:39 Thomas: Laws or, yeah. Hmm.

0:29:46 Andrew: So, you know, those defendants would be dismissed out. Alternatively, because this is a legal determination, right, double jeopardy does not apply, the federal government can appeal this to the Seventh Circuit. Market. I don't know if the government is going to want to do that or not. In my view, I mean, we went through this. In my view. There is there is a non trivial argument that there is an interstate connection here. Right. But I think it's probably not a winning argument on appeal. And, you know, we'll have to see. We'll have to see what what the government does there.

0:29:47 Thomas: Hmm. Right. Okay. Yeah.

0:30:27 Thomas: See what they, yeah. Now, how does this play out with the law itself? You know, this is one decision somewhere. At what point does the federal government go, okay, this law, it's not even on the books then because it's been shown to be invalid. How does that work?

0:30:45 Andrew: Great question. So this case only applies as law of the particular district in the Eastern District of Michigan. It is an interpretation of the U.S. Constitution. But a judge sitting elsewhere will take

0:31:02 Thomas: They could go the other way.

0:31:04 Andrew: That, yeah, as persuasive authority. They have they have no just because one person in Michigan thinks a thing doesn't mean everybody has to think that thing.

0:31:06 Thomas: Hmm. And so even hypothetically, even if this case went nowhere, like they just didn't bother appealing, maybe they just found a different way to try to charge who they wanted or something, this could come up in another state and they could even just decide it the other way in that particular state, yeah.

0:31:25 Andrew: It, it, yes, that could happen. Now, let me throw a little cold water on that, um, this is a a single judge decision at a single trial court, in the same way that Kitzmiller versus Dover was, right? Like, in other words, judges find it very, very and kitz miller versus Dober was the intelligent design, uh, case in in Pennsylvania, uh, that really, uh, became a landmark case and shut down the Discovery Institute's efforts to, uh, to teach intelligent design in public schools. Again, just one district court judge ruling on the facts only applicable.

0:32:04 Thomas: But people will read into it and

0:32:06 Andrew: Yeah, because when the exact same facts present themselves to another judge, they tend to find that very, very persuasive that that a judge has already ruled on the merits on that issue. So I think and and and because of that practice. Right. So there's no direct effect. There's no, you know, directly controlling precedent. But because it is persuasive authority is is the language that that lawyers use. I think this will stop prosecutors from bringing charges under 18 U.S.C. 116. And as you point out, Congress will probably never go back and repeal that law.

0:32:07 Thomas: Yeah okay

0:32:54 Andrew: There are lots of laws that are on the books. You know, one of the things about my job that that makes it a little difficult for just the average person to do it is 10 years, you know, tomorrow and 10 years from now, you will be able to pull the 18 U.S.C. book off the shelf, and you'll be able to turn to the page containing 116, and it will probably still be in there, and it will be a law that says, you know, it is a felony to perform, you know, these acts of female genital mutilation, but it will not be enforced it

0:33:06 Thomas: But when you punch it into your computer machine will it give you like some red or something that's like

0:33:33 Andrew: Will it will give me a red flag, yes, that's exactly right, but you know, but that's where there's another total tangent, but when you I get, this is pre-internet, but there, it used to be, um, people would would circulate, uh, books of like wacky laws that are still on the books, of, you know, it's illegal to water your horse within a hundred feet of a school in downtown Mississippi, or you know, and, um, where that, where that comes up is, uh, there are, I believe Maryland still has a law, right, there are laws that we sometimes see, uh, you know, uh, touted in the atheist community that you you know, prohibit atheists from holding office. And those laws are on the books, but worthless, right? Like there's, you know—they are not enforced against individuals. And, you now,

0:33:33 Thomas: Yeah yeah yeah oh yeah yeah, right yeah so it's a similar thing where some decision somewhere, somewhere along the line, told everybody, okay, this is a worthless law, but it never, there's no, there really should be some sort of, you know, tidying up process or something. I don't know. It seems weird that all of them stay on the books.

0:34:40 Andrew: It—you know, and this is—let's give voice to a little—a libertarian argument here find interesting. But the science fiction author Robert Heinlein had one of his mouthpiece characters in in The Moon is a Harsh Mistress, which is a great book, by the way, if you haven't read it, give voice to the idea that you should have a a bicameral legislature where one house can only pass laws and one house could only repeal them. Them.

0:35:12 Thomas: Oh, interesting.

0:35:13 Andrew: Uh, and I always thought, you know, and you could see immediately, and he was, you know, sort of a he had randy and libertarian leanings, um, uh, and so, you know, you can see the immediate appeal of that, of, you know, if you want, uh, that, you know, the same folks who were like, uh, we're gonna, you know, Trump's, uh, we're gonna repeal two regulations for every regulation you pass, um, but I always thOught I went, every time I read I mean, it stuck with me for 30 years, right, like I get that.

0:35:14 Thomas: Yeah.

0:35:36 Andrew: It would be fun.

0:35:35 Thomas: Cause like the Trump thing is stupid because yeah, if you need a regulation, you shouldn't need to get rid of two. That makes no sense. But a chamber that can only repeal stuff, it doesn't have to repeal repeal stuff. You know, it could decide, ah, everything's good right now. Yeah. That's interesting. Not the worst idea.

0:35:48 Andrew: Yeah. Yeah, so I, I throw that out there as an interesting thing.

0:35:55 Thomas: Not the worst ideia I've ever heard. I'll say that. Could be, throw a mini, mini bone over to the libertarians after we just bashed them recently on OA. So I think that settles it everywhere. And I just want to clarify because this was something thing that I think I saw in some of the possibly misleading coverage. Nowhere in any of this was there a question of like, the reason this law wasn't valid is because circumcision of boys is okay, right?

0:35:57 Andrew: Yeah, yeah.

0:36:08 Andrew: No,

0:36:26 Thomas: Yeah, nowhere. Anyway, I did see one source that kind of reported it that way, just goes to show that the law is hard. And or it's easy for people to be kind of dishonest or whatever. But that that's not a consideration here. It's just a jurisdictional, you know, Can the federal government, can Congress write a law that regulates anything like this?

0:36:26 Andrew: Yeah, it, if I wanted to steel man that position, and I'm going to try. I don't know that it was made in good faith. It remember that the court rejected the necessary and proper to the enforcement of the treaty obligation argument and said the treaty obligation is about the rights of all children. And this is a specific. So I'll read you that language. They say the connection between the FGM statute and Article 24 that's the treaty is tenuous. Us Article 24 is an anti-discrimination provision which calls for the protection of minors without regard to their race, color, sex, or other characteristics. As laudable as the prohibition of a particular type of abuse of girls may be, it does not logically further the goal of protecting discriminated children on a non-d discriminatory basis. So

0:37:42 Thomas: Well, I feel like I disagree with that reasoning. It's like, yeah.

0:37:43 Andrew: Yeah. Oh, I I did, I mean, it's why I didn't, I didn't go there, I I I

0:37:48 Thomas: The treaty is totally cool with child abuse as long as you only abuse a certain category of child. Like, it's totally fine with it. You can't abuse all children. You have to be selective and only abuse.

0:37:53 Andrew: It I I Did Not I did not want to defend that particular Bit Of reasoning, but Yeah.

0:37:59 Thomas: Yeah, no, I hear what you're saying.

0:38:03 Andrew: Yeah. But But so I suppose, I mean, like, again, the Better Argument Is

0:38:03 Thomas: Yeah, yeah, okay. Okay. Like maybe that's where they latched onto that or something.

0:38:08 Andrew: Yeah, The better argument is the court's wrong on that, right? Like, this is, you you can implement a non-discrimination provision, right? Because, so think about what the court is saying. The court is saying this law is not necessary and proper for the enforcement of the non-discrimination provisions in the treaty because it only covers girls. Right. And the counter argument would be, look, multiple things collectively could be necessary and proper for fulfilling those obligations, right? You could you could implement them serially. Right, like, so you, this law protects girls. We have a separate law that, you know, protects girls and boys. We have a separate law that protects boys from things, that right. You know, that, that and that all of them individually would be necessary but not sufficient.

0:38:57 Andrew: And that's the argument I would make if I were the government taking this case on appeal to the Seventh Circuit on the on the treaty argument, to turn that into it's because the court, like, there's... there's zero discussion of male circumcision in that. And the language, I mean, right, like, well, maybe we don't want to go down that route. Do an SIO on male circumcision at some point.

0:39:21 Thomas: Yeah. I have a while ago. It's, it's yeah, it it's, certainly I, I, I have come to think that male circumcision is, is probably, you know, wrong, but it's I still think it's it's not in the same category as some of the things described in this law. So, but that's, we'll leave that grenade for another.

0:39:28 Andrew: Yeah, that's my position, too.

0:39:47 Thomas: Yeah, yeah. Yeah. So, all right. We don't want to go down that road now, but maybe I can do that on a later date. But anything else we want to keep an eye on? We're just looking to see what the government decides to do. Any final thoughts?

0:39:48 Andrew: So, yep, my my guess is that they will let this stand. But but but I will I will let you know

0:40:03 Thomas: Oh, OK. I did want to ask you if you can answer briefly. Is there any way to rewrite the law? Can Congress be like, OK, can we write this in a way that would be enforceable? Or is it just can't do it because of what it's trying to enforce?

0:40:18 Andrew: If it's, it's why I went through the details of the Ashcroft decision, because I think, yes, right. Right. Like if Congress were to conduct fact finding and that fact finding were to reveal that there is an interstate market for female genital mutilation. And and and let me say, I think that that could very well be the case. It may not be a large market, but we know that there are communities here in Michigan that contain a sizable plurality of residents that adopt this practice on a religious basis. And so it strikes me as not implausible that if you are a believer in the practice and you live elsewhere, you may travel interstate in order to have this done. So if Congress were to do that, were to take this up and were to conduct the necessary fact finding, that would make this a much, that will put this in a much more different position. Um, now that would require Congress passing laws but um you know, yeah.

0:41:12 Thomas: Yeah. All right. So in terms of things, yeah, true. But again, I feel like this should easily be bipartisan. I don't think this is, you know, don't you think? If anything, it might only be bipartisan where it's like there might be a certain far off left that doesn't want to mess with it. And then, yeah. I'm not sure. But anyway, lobby your state. If you live in a state that doesn't have these laws, you know, Google it and then start lobbying because that does seem to be the most direct course of action anyone could take, right?

0:41:47 Andrew: Yeah. Yep.

0:41:59 Andrew: Sorry.

0:41:59 Thomas: All right. Well, Andrew, thanks so much for hopping on over for the breakdown. That was really educational. I always wonder about interstate commerce. It is a very confusing part of the law for me. I think I have a better understanding now. And thanks for breaking down that FGM case in a way that I hope we can all understand what actually happened in that decision.

0:42:21 Andrew: Thomas, thank you so much for having me. Like I said, it's always uh, it's always great to come, to come home again. So uh, happy anytime.

0:42:26 Thomas: All