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What the Supreme Court did was say that if there is to be a federal guarantee of that, Congress has to make it so by passing a law saying as much. That seems ki

What the Supreme Court did was say that if there is to be a federal guarantee of that, Congress has to make it so by passing a law saying as much. That seems kinda reasonable to me?

robotresearcher 4y ago
The position they overturned was that the freedom was guaranteed by the 14th amendment of the US Constitution, which was passed by Congress.
- btilly 4y ago
  That isn't how amendments are made. They have to pass Congress and the Senate with a 2/3 majority and then be ratified by 3/4 of the states. Congress alone can't change the Consitution.
  - robotresearcher 4y ago
    Congress doesn't pass any laws by itself [1], so of course I wasn't claiming it changed the Constitution alone. But Congress did indeed pass the 14th Amendment. [1] "In order to pass [ordinary] legislation and send it to the President for his or her signature, both the House and the Senate must pass the same bill by majority vote. If the President vetoes a bill, they may override his veto by passing the bill again in each chamber with at least two-thirds of each body voting in favor." https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/ https://www.whitehouse.gov/about-the-white-house/our-governm...
    - btilly 4y ago
      You found the procedure for something completely unrelated. The procedure for amendments is specified in https://www.archives.gov/federal-register/constitution/article-v.html https://www.archives.gov/federal-register/constitution/artic.... There are two procedures, only one of which has ever been used. In that procedure Congress *PROPOSES AN AMENDMENT* (with a 2/3 vote in both houses), then 3/4 of the states have to ratify it within 7 years. Also no involvement from the President is required. Therefore Congress never passed the 14th amendment. It *PROPOSED* it. And the distinction is significant because Congress itself lacks authority to amend the Constitution.
      - robotresearcher 4y ago
        Your last message: > Therefore Congress never passed the 14th amendment Your previous message: > [Amendments] have to pass Congress and the Senate Which would be a contradiction given the existence of the 14th Amendment. So it seems like you're able to use 'pass' in the general sense of formally approve/propose/support when it's a reasonable shorthand. Me too.
    - dragonwriter 4y ago
      > Congress doesn't pass any laws by itself It does when it overrides a veto. > But Congress did indeed pass the 14th Amendment. No, it proposed it.
      - robotresearcher 4y ago
        Sure. I see the distinction. I stand corrected. My point is unchanged: the legal position in effect from Roe until the Dobbs opinion was that the constitutional guarantee of personal liberty through the 14th Amendment would include abortion. Congress, being a party to the Constitution, had thus already spoken on the matter. The new decision overturns that position.
  - dragonwriter 4y ago
    > They have to pass Congress and the Senate The Senate is part of Congress. You mean something like “they need to be proposed by the concurrence of 2/3 of both the House and Senate, or by a convention called for by the legislatures of 2/3 of the states.”
etchalon 4y ago
It's deeply unreasonable in a divided nation. The end result is one set of American's enjoys rights another does not.
jamroom 4y ago
I also think it is reasonable - however - what the SC has done is throw out precedent here - there is a tremendous amount of "law" that has not been codified by the constitution or by congress, but instead relies on decades and decades of cases that have come before the supreme court. So in this instance they have specifically decided that these previous decisions were wrong and reversed it. I believe this was done selectively and purposefully.
- anon291 4y ago
  The supreme court should throw out bad precedent. Court precedent that's bad is the worst because no one can overturn it.
- btilly 4y ago
  But that ISN'T what the Supreme Court did. See https://news.ycombinator.com/item?id=32143004 https://news.ycombinator.com/item?id=32143004 for my description of what they actually decided. That said, your precedent point is important. See page 119 of https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf for Thomas' concurrence where he says that Supreme Court decisions supporting access to contraception for married couples, for couples to engage in consensual sexual acts (specifically sodomy), and a right to gay marriage. Abortion rights do not fall by themselves. They are part of a web of related rights that will rise and now probably fall in conjunction.
btilly 4y ago
The Supreme Court said NOTHING of the sort. They ruled on what the Constitution said about abortion. No ruling was made on whether Congress can create legislation, and I'd bet money that Congress can't. The full decision is at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf where you can verify for yourself. But about the Congressional question, Congress are only able to pass federal legislation if it fits within one of their enumerated powers. And the interpretation of those enumerated powers depends on the Supreme Court. Despite the Supreme Court's silence, I'd bet that they would rule that Congress lacks authority. If you want to dig deeper on that, Congress's enumerated powers are described well at https://constitution.congress.gov/browse/article-1/section-8/ https://constitution.congress.gov/browse/article-1/section-8.... You probably want to focus on the Commerce Clause, that's the one which is the broadest grant of power. It would be a Hail Mary, but you can also look at amendments and ratified treaties for more sources of Congressional authority. (Remember, treaties only give Congress power to pass laws if they are ratified by a 2/3 majority in the Senate. So we must have ratified it, not just signed. Most that we sign, we do not ratify.)
- happyopossum 4y ago
  The SC has ruled repeatedly (and recently) that healthcare is a legitimate area for Federal lawmaking.
  - btilly 4y ago
    You have misunderstood what it is that they decided. For example consider the affordable healthcare act (aka Obamacare). A decade ago, the Supreme Court upheld it. This is one of their "healthcare is a legitimate area for Federal lawmaking". But read their decision at https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf and that isn't what they decided. What they decided is that all of it fell under the power to regulate Commerce EXCEPT the individual mandate. However the individual mandate falls under the taxation power. None of this adds up to, "Congress can pass legislation because it is about healthcare." All of it is of the form, "The legislation passed fell under enumerated powers that Congress has." Here is a sample passage from page 3 about why the individual mandate cannot be supported under the Commerce clause: > The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. Now suppose that Congress passed a law mandating universal access to abortion, while Texas has forbidden the same. By the reasoning that I just quoted, Congress' ability to regulate commerce does not extend to compelling Texas to allow commerce where none currently exists. This does not mean that Congress is powerless. The next legal battleground is going to be over people leaving one state to get an abortion in another. Conservative states would like to ban it. As https://www.poynter.org/fact-checking/2022/can-states-punish-women-for-traveling-out-of-state-to-get-an-abortion/ https://www.poynter.org/fact-checking/2022/can-states-punish... says, it is a tossup about whether such bans will succeed. But if there was specific federal legislation to allow crossing state lines for the purpose of abortion, that pretty squarely falls under the Commerce Clause. Because it is interstate commerce, in a commercial activity which actually exists.

What the Supreme Court did was say that if there is to be a federal guarantee of that, Congress has to make it so by passing a law saying as much. That seems kinda reasonable to me?

robotresearcher 4y ago

The position they overturned was that the freedom was guaranteed by the 14th amendment of the US Constitution, which was passed by Congress.

btilly 4y ago
That isn't how amendments are made. They have to pass Congress and the Senate with a 2/3 majority and then be ratified by 3/4 of the states. Congress alone can't change the Consitution.
- robotresearcher 4y ago
  Congress doesn't pass any laws by itself [1], so of course I wasn't claiming it changed the Constitution alone. But Congress did indeed pass the 14th Amendment. [1] "In order to pass [ordinary] legislation and send it to the President for his or her signature, both the House and the Senate must pass the same bill by majority vote. If the President vetoes a bill, they may override his veto by passing the bill again in each chamber with at least two-thirds of each body voting in favor." https://www.whitehouse.gov/about-the-white-house/our-government/the-legislative-branch/ https://www.whitehouse.gov/about-the-white-house/our-governm...
  - btilly 4y ago
    You found the procedure for something completely unrelated. The procedure for amendments is specified in https://www.archives.gov/federal-register/constitution/article-v.html https://www.archives.gov/federal-register/constitution/artic.... There are two procedures, only one of which has ever been used. In that procedure Congress *PROPOSES AN AMENDMENT* (with a 2/3 vote in both houses), then 3/4 of the states have to ratify it within 7 years. Also no involvement from the President is required. Therefore Congress never passed the 14th amendment. It *PROPOSED* it. And the distinction is significant because Congress itself lacks authority to amend the Constitution.
    - robotresearcher 4y ago
      Your last message: > Therefore Congress never passed the 14th amendment Your previous message: > [Amendments] have to pass Congress and the Senate Which would be a contradiction given the existence of the 14th Amendment. So it seems like you're able to use 'pass' in the general sense of formally approve/propose/support when it's a reasonable shorthand. Me too.
  - dragonwriter 4y ago
    > Congress doesn't pass any laws by itself It does when it overrides a veto. > But Congress did indeed pass the 14th Amendment. No, it proposed it.
    - robotresearcher 4y ago
      Sure. I see the distinction. I stand corrected. My point is unchanged: the legal position in effect from Roe until the Dobbs opinion was that the constitutional guarantee of personal liberty through the 14th Amendment would include abortion. Congress, being a party to the Constitution, had thus already spoken on the matter. The new decision overturns that position.
- dragonwriter 4y ago
  > They have to pass Congress and the Senate The Senate is part of Congress. You mean something like “they need to be proposed by the concurrence of 2/3 of both the House and Senate, or by a convention called for by the legislatures of 2/3 of the states.”

etchalon 4y ago

It's deeply unreasonable in a divided nation. The end result is one set of American's enjoys rights another does not.

jamroom 4y ago

I also think it is reasonable - however - what the SC has done is throw out precedent here - there is a tremendous amount of "law" that has not been codified by the constitution or by congress, but instead relies on decades and decades of cases that have come before the supreme court. So in this instance they have specifically decided that these previous decisions were wrong and reversed it. I believe this was done selectively and purposefully.

anon291 4y ago
The supreme court should throw out bad precedent. Court precedent that's bad is the worst because no one can overturn it.
btilly 4y ago
But that ISN'T what the Supreme Court did. See https://news.ycombinator.com/item?id=32143004 https://news.ycombinator.com/item?id=32143004 for my description of what they actually decided. That said, your precedent point is important. See page 119 of https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf for Thomas' concurrence where he says that Supreme Court decisions supporting access to contraception for married couples, for couples to engage in consensual sexual acts (specifically sodomy), and a right to gay marriage. Abortion rights do not fall by themselves. They are part of a web of related rights that will rise and now probably fall in conjunction.

btilly 4y ago

The Supreme Court said NOTHING of the sort. They ruled on what the Constitution said about abortion. No ruling was made on whether Congress can create legislation, and I'd bet money that Congress can't. The full decision is at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf where you can verify for yourself. But about the Congressional question, Congress are only able to pass federal legislation if it fits within one of their enumerated powers. And the interpretation of those enumerated powers depends on the Supreme Court. Despite the Supreme Court's silence, I'd bet that they would rule that Congress lacks authority. If you want to dig deeper on that, Congress's enumerated powers are described well at https://constitution.congress.gov/browse/article-1/section-8/ https://constitution.congress.gov/browse/article-1/section-8.... You probably want to focus on the Commerce Clause, that's the one which is the broadest grant of power. It would be a Hail Mary, but you can also look at amendments and ratified treaties for more sources of Congressional authority. (Remember, treaties only give Congress power to pass laws if they are ratified by a 2/3 majority in the Senate. So we must have ratified it, not just signed. Most that we sign, we do not ratify.)

happyopossum 4y ago
The SC has ruled repeatedly (and recently) that healthcare is a legitimate area for Federal lawmaking.
- btilly 4y ago
  You have misunderstood what it is that they decided. For example consider the affordable healthcare act (aka Obamacare). A decade ago, the Supreme Court upheld it. This is one of their "healthcare is a legitimate area for Federal lawmaking". But read their decision at https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf https://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf and that isn't what they decided. What they decided is that all of it fell under the power to regulate Commerce EXCEPT the individual mandate. However the individual mandate falls under the taxation power. None of this adds up to, "Congress can pass legislation because it is about healthcare." All of it is of the form, "The legislation passed fell under enumerated powers that Congress has." Here is a sample passage from page 3 about why the individual mandate cannot be supported under the Commerce clause: > The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. Now suppose that Congress passed a law mandating universal access to abortion, while Texas has forbidden the same. By the reasoning that I just quoted, Congress' ability to regulate commerce does not extend to compelling Texas to allow commerce where none currently exists. This does not mean that Congress is powerless. The next legal battleground is going to be over people leaving one state to get an abortion in another. Conservative states would like to ban it. As https://www.poynter.org/fact-checking/2022/can-states-punish-women-for-traveling-out-of-state-to-get-an-abortion/ https://www.poynter.org/fact-checking/2022/can-states-punish... says, it is a tossup about whether such bans will succeed. But if there was specific federal legislation to allow crossing state lines for the purpose of abortion, that pretty squarely falls under the Commerce Clause. Because it is interstate commerce, in a commercial activity which actually exists.