Doctrine of Congressional Creation Prohibits States Enforcing Abortion Law (Living Constitution)

In Trump v. Anderson 23-719, the US Supreme Court had a choice when faced with an action by a state that was authorized by Article II and did not violate Fourteenth Amendment Section 1, but overlapped with a federal interest and was not specifically designed and authorized by Congress:

1) reject federal jurisdiction

2) reverse the action

The US Supreme Court chose the second, saying that when states take actions that are not prescribed to their authority by a specific act of Congress, and where a federal interest has been created under law, the absence of Congress vesting those powers in the state creates federal jurisdiction, and a federal court can block those actions.

When the federal government gets the power to do something – when federal interest and power is created by written federal law – that power is removed from states and must be specifically delegated back to states by Congress.

So suppose, for example, a state passes a law that prohibits you from getting an abortion, to protect the life of the child, and saying things like the US Constitution protects the unborn child’s “right to life”. 18 USC 241 vests in the federal government the power to imprison a woman and her doctor, for conspiring to injure the child (“That Act… made… a federal crime”, Trump v. Anderson US 23-791). So until Congress delegates this power back to states to protect children from injury, a federal court can reverse enforcement of such an interest in state court.

The power to prosecute murder and “enforce societal norms”, as well as to choose their own electors, is a power that was long given to states. But once the federal government has a power to bar a person from a ballot, that power is removed from the states, and must be created by Congress and delegated to the states anew.

In 1847, the State of Florida could have barred a candidate from their President ballot for insurrection or for any reason (perhaps for opposing their right to secede), based on the powers granted in Article II. The design of that process – including the color of any legal arguments – was none of the business of any other state or the federal government (“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.” Texas v. Pennsylvania, US Supreme Court 220155)

In 1847, Florida could have barred a presidential candidate from the ballot saying the authority to do so was given by the federal government or by demons, whether because federal law prohibits the candidate based on age, or based on a state right to “enforce societal norms”. It does not matter what reason the state court gives, since it is not a federal court’s business to even examine the state’s logic or reasoning.

But in 2024, federal jurisdiction allows a federal court to consider whether states have the power to do something under any color, when the federal government has the power to do that thing, so that Congress must now design any action taken by states in the same matter. So even though states were already enforcing laws against murder or unpopular people being on their ballots, they lost that right when Congress took an interest to put the matter in federal jurisdiction.

If a state determination of insurrection is not made with the authority of federal law, then the state’s definition of “insurrection” has nothing to do with the 14th Amendment, despite using the same word. Their ability to enforce the interest could not be revived by calling it “outsurrection”. The interest is whether states can remove people whose behavior they don’t like from their President ballot – or for a specific behavior in a specific event – regardless of what they call it. Could the state remove someone from their President ballot for drinking too much?

Can The Florida Bar bar Florida attorneys from drinking at the bar during breaks in a criminal trial? Nobody would argue that Florida is thereby barring attorneys from participating in The Federal Bar, just because the use of the word “bar”. Nobody says “hey, going to the bar, that is for The Federal Bar to decide”. There is no law that says a word has the same meaning in all contexts and uses, so that a state action is enforcement of a federal law, when by definition a state action is not enforcement of a federal law. People in Florida call their gun laws “Constitutional carry” and refer to many state actions as “enforcing constitutional rights” which are not.

The word “insurrection” as used by Colorado, was a state invention. There is nothing special about the word “insurrection” to make it different from the word “bar”. It is a word chosen (or invented as state legislators often do) to label a behavior they don’t like. So it is clearly not a problem of states trying to enforce federal law for the simple reason that they use the same word, but that states cannot enforce interests given to the federal government and not delegated back to the states. Once the federal government takes an interest in a behavior the state doesn’t like, the state can call that behavior anything they want (“this is statesurrection”), the state still cannot enforce laws against it until Congress says they can.

By saying there was federal jurisdiction, the US Supreme Court ruled that Trump committed insurrection as defined by federal law. If Trump had not committed federal insurrection, then there was no jurisdiction for a federal court to consider Colorado’s decision to remove Trump for whatever he did. If Trump got really drunk and ran over a bunch of people, and Colorado disqualified Trump calling this behavior “insurrection”, it would not have been the business of the US Supreme Court. (Washington State seems to have a law enabling voters to challenge felons holding office.) So even if a state calls it “abortion”, a federal court has jurisdiction if they label the same behavior “injury”, and only if they find a named federal interest in the matter.

So when it comes to injury of a child (“If two or more persons conspire to injure” 18 USC 241), the law empowers Congress to prescribe how those determinations should be made, and therefore excludes states making such a determination unless Congress delegates it back to them. The state cannot play a word trick by calling it “abortion” rather than “injury”, to evade federal authority. Neither the 14th Amendment nor 18 USC 241 specifically removed the preexisting right of states to protect children from injury or to remove all manner of scofflaws from their ballots. But according to the US Supreme Court in Trump v. Colorado, new federal authority must specifically be granted back to states.

So any state enforcement of law against injury of an unborn child must be reversed by a federal court (“grants new power to Congress to enforce”, “nothing in the Constitution delegates to the States any power”, “It would be incongruous to read this… as granting the States the power — silently no less”, “there is little reason to think that these Clauses implicitly authorize the States to enforce”, “a general understanding that the States lacked enforcement power”, “a committee of the House reviewed Christy’s qualifications itself and recommended”, Trump v. Anderson, US 23-719).