Two weeks after its decision to begin fighting the Affordable Care Act (ACA) in court, the Justice Department stated to a lawmakers that it would stop defending a federal law prohibiting female genital mutilation due to a flaw in the wording of the litigation.
Solicitor General Noel J. Francisco wrote in a letter to Senator Dianne Feinstein of California, who is the head Democrat on the Senate Judiciary Committee, that the Justice Department had “reluctantly determined” that they could not appeal a court’s decision to throw out the case on female genital mutilation practices because there were parts of the statute that needed to be rewritten.
The primary function of the U.S. Justice Department is to defend laws on the books. According to Walter Dellinger III, who served as Solicitor General under the Clinton administration, only about once a decade since World War II has the Justice Department declined to uphold a law passed by Congress. Therefore, the decision made to decline to support the case was unusual.
While conservatives have been attacking the Affordable Care Act for years, legal experts are still trying to decide whether or not the prohibitive female genital mutilation laws are defensible. Although there is a difference between the difficulties surrounding the ACA and the female circumcision law situation, critics from both sides of the are unnerved by the alleged appearance of the Justice Department’s inclination towards the legitimacy of a law being decided by the Trump administration, not by members of Congress.
Female circumcision on minors was outlawed by Congress in 1996 except in cases where the procedure was deemed “medically necessary.” Although the statute remained unmentioned for years, it was tested for the first time recently when federal prosecutors charged four mothers with breaking the law after they brought their daughters to a clinic in Michigan for circumcision. Prosecutors also charged the doctors involved.
The law was originally enacted under the claim that there was a connection between lenient interstate commerce regulations and female genital mutilation, but the connection was not found to be strong enough in the written litigation to uphold. In his letter to Feinstein, Francisco made several suggestions on strengthening the connection between the ban and interstate commerce to argue for keeping the ban in place.
Although evidence was presented that the clinic mutilated nine children total, the case was dismissed by a judge, who cited flaws in the case that made it impossible to convict the defendants. Francisco wrote that the Justice Deparment was declining to pursue an appeal as it typically would due to the lack of a “reasonable defense of the provision, as currently worded.”
The general principle is that the Justice Department is responsible for defending any law if it can be reasonably defended in court, a statute which prevents the Dept. from usurping Congressional powers by defending only certain laws. Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law School, is troubled by the current climate surrounding the Justice Department, and has urged Congress to come up with solutions rather than rejecting the law as a whole.
“Lawyers at the Justice Department often find that a law could have been written more clearly but it’s rare that one is written so poorly as to be completely indefensible,” said Geltzer. “Imagine a world where an administration of one party passes a law and then a different president effectively invalidates it by having the Justice Department refuse to defend it in court. You want elected lawmakers to draft laws, not lawyers at the Justice Department.”