tap... tap... tap...

Ok, so there haven't been any decisions yet, and we are reaching the point where I will have to put them off if they do start coming out. That's probably why I am so susceptible to the latest from the rumor mill about another justice announcing a retirement at the end of this year. Ponder, for a moment, who it could be and how that could change the outlook on the law for (oh, say, 15 years).

Also, the National Review Online has an article about the partial birth abortion ban that the Court heard a few days ago. The discussion is pretty trite, but the end brings up a topic that I have been thinking about a lot lately. Apparently, the partial birth abortion ban is justified on the grounds that Congress can regulate interstate commerce. But wait, you say, how does a law about abortions apply to interstate commerce? Well, I don't know, but we have the assurance of the law itself, by way of an explicit provision that it shall only apply to cases where interstate commerce is implicated.

So here is my take on that. It is irresponsible, improper, and (I believe) an unconstitutional delegation of authority to write a law so broadly that its meaning is essentially left up to the courts. The Court has already declared that it has no interest in receiving laws that are deliberately overbroad, and taking responsibility for narrowing them down so that they are constitutional, and it shouldn't. So, my suggestion, when the Court comes across a law that is fundamentally and egregiously overbroad, such as the lately failed South Carolina ballot initiative to ban abortion, the Court should not honor severability clauses where by doing so it essentially takes the job of the legislature (seveability clauses being those parts of the law declaring that the remainder of a law will continue in force and effect if one provision is found unconstitutional).

Of course, I am not saying the partial birth abortion ban is one of those laws (I actually doubt it is, but I haven't read it), but the article seems to just assume that the Court will take it upon itself to clean up Congress' mess.

Edit: ok, so apparently adding "if it affects interstate commerce" is a more common phenomenon than I thought. I still find it objectionable because it forces those subject to the law to evaluate the Commerce Clause just to figure out when their actions are controlled by the law, an evaluation that few people (lawyers included) are qualified to make.

Also, it occurs to me that what I said above implicitly suggests that courts should not allow as applied challenges to the law. I think, however, that the two solutions are more similar than they sound. Not honoring severability clauses would prevent courts from choosing the precise extent to which the law violates the Constitution, which extent would change depending on the circumstances of the challenge. Prohibiting as-applied challenges would effectively do the same thing, but only to the extend that the offending clause was severable per se from the rest of the law. So, I guess the no-as-applied challenges rule would be marginally better in theory; I have no basis to evaluate what the difference would be in practice.