Female Genital Mutilation and the Treaty Power: What Congress Can Do

Since 1996, the act of female genital mutilation (FGM) has been a federal crime. Federal circuit courts have characterized FGM as “a barbaric practice unbecoming of a civilized society,” “a form of physical torture causing grave and permanent harm,” and “a horrifically brutal procedure.” According to a high-ranking official in ICE’s Homeland Security Investigations unit, “[b]rutality of this nature is inconceivable and horrifying.” And the Solicitor General of the United States recently declared FGM to be “an especially heinous practice . . . that should be universally condemned.” In keeping with this uncompromising posture, successive administrations have used their diplomatic clout to pursue the global eradication of FGM.

Although an estimated 513,000 women and girls in the United States are at risk of being subjected to FGM, federal prosecutors brought only one set of charges under the FGM prohibition, 18 U.S.C. § 116(a), in its first two decades of existence. That’s why the April 2017 indictment of Jumana Nagarwala, a Detroit emergency-room doctor, was such a tectonic event in the anti-FGM community. It held out the promise of accountability for human-rights abuses that often occur under a shroud of secrecy. And it demonstrated DOJ’s commitment to enforcing an untested statute whose deterrent effect had been questionable, at best. Superseding indictments revealed a protracted conspiracy in which Dr. Nagarwala and her associates routinely performed FGM on minors—perhaps over a hundred in all—at a Michigan medical clinic.

But in November 2018, Judge Bernard Friedman of the U.S. District Court for the Eastern District of Michigan issued a sweeping opinion holding the FGM statute unconstitutional on the grounds that neither Congress’s treaty-implementing authority nor its power to regulate interstate commerce justified § 116(a)’s enactment.

DOJ initially appealed this loss to the Sixth Circuit, its customary response when a federal statute is ruled unconstitutional. But on April 10, 2019, the Department sharply reversed course in a so-called § 530D letter. Despite “condemn[ing] [FGM] in the strongest possible terms,” DOJ insisted that no reasonable argument could be made in the statute’s defense under either the treaty power or the Commerce Clause. DOJ then moved to withdraw its appeal, and it vigorously opposed the House of Representatives’ effort to intervene in the case for the limited purpose of defending the statute’s constitutionality. (Disclosure: I was among the lawyers at Georgetown’s Institute for Constitutional Advocacy and Protection representing the House at this stage.) The Sixth Circuit granted DOJ’s motion, thereby ensuring that the district court’s extraordinary ruling would avoid appellate review.

Given the consequences at stake—what remedies exist for a widespread form of gender-based mutilation—one might assume that the district court and DOJ undertook these tasks with particular caution. Judge Friedman, after all, professed to have reviewed the statute “with the greatest possible deference;” the Department likewise claimed that it reached its position “reluctantly.” In less fraught times, these momentous determinations—and the vows of modesty underlying them—might have come in for serious public scrutiny. Instead, Nagarwala received scant attention in legal outlets.

It’s time to reflect on whether the district court’s opinion was correct, and whether DOJ’s ongoing nondefense of the FGM statute is a fair application of its time-honored “no reasonable argument” standard for abandoning the defense of a federal law. If DOJ erred on that score, after all, it will have effectively nullified a valid federal statute—at least until a differently constituted administration can breathe new life into § 116(a).

My thesis is simple: both the district court and DOJ performed disastrously. Each actor predicated its constitutional analysis on an astonishingly shallow understanding of the nature of FGM and the legal framework for regulating it. In this article, I will explain why § 116(a) is justifiable as a means of implementing the United States’ treaty obligations. There is a clear rational relationship between the FGM statute and rights protected under the International Covenant on Civil and Political Rights (ICCPR). And even if federalism principles constrained Congress’s ability to implement treaty obligations—which, under current law, they do not—FGM is not the sort of “purely local” crime purportedly reserved for state and local regulation.

But don’t take my word for it—judge for yourself whether reasonable arguments can be made in § 116(a)’s defense.

Is the FGM Statute “Rationally Related” to Article 24(1) of the ICCPR?

Article I, Section 8 of the Constitution empowers Congress to enact laws that are “necessary and proper for carrying into execution” all powers vested in the U.S. government, including the power to make treaties. According to the Supreme Court, when the Necessary and Proper Clause is invoked as a source of authority, a court must assess “whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” At least five circuit courts have applied that standard in the context of treaty-implementing legislation. Judge Friedman, to his credit, did so as well. But he gravely misconstrued the treaty commitments that the FGM law was designed to effectuate.

At the district-court level, DOJ argued that § 116(a) was an appropriate means of implementing Article 24(1) of the ICCPR, which states that “[e]very child shall have, without any discrimination as to race, colour, 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.” Judge Friedman, however, discerned no rational connection between that provision and the FGM statute. Here is the entirety of his analysis on this score:

[T]he relationship between the FGM statute and Article 24 is tenuous. 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 children on a nondiscriminatory basis.

Here, Judge Friedman appears to conclude that, because § 116(a) draws a sex-based distinction in focusing on a type of abuse suffered only by females, it cannot be regarded as protecting children “without any discrimination.” But this exceptionally narrow reading of the ICCPR ignores the proper methodology for interpreting international agreements.

As the Supreme Court has instructed, a treaty’s terms must be interpreted “in their context and in the light of [the agreement’s] object and purpose.” This contextual inquiry accounts for “the shared expectations of the contracting parties” and “the practical construction adopted by the parties.” Indeed, the Roberts Court has specifically cautioned against “import[ing] background principles of American law into the treaty interpretation process, thereby altering our understanding of the treaty itself.” Judge Friedman’s hyperliteral analysis displayed no awareness of the basic principles of treaty interpretation—and no concern for harmonizing his findings with the views of the United States’ treaty partners.

When the George H.W. Bush administration transmitted the ICCPR to the Senate Foreign Relations Committee in 1991, it included several proposed reservations, understandings, and declarations, along with a short explanation of each proposal. One specifically clarified how the ICCPR’s “nondiscrimination” provisions should (or at least could) be interpreted:

[T]he Human Rights Committee has observed that not all differentiation of treatment constitutes discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant. In its General Comment on nondiscrimination, for example, the Committee noted that the enjoyment of rights and freedoms on equal footing does not mean identical treatment in every instance.

The Human Rights Committee is the United Nations body charged with monitoring implementation of the ICCPR. Although its interpretations are not legally binding, the Committee’s General Comments are widely recognized as “a major source for interpretation of the ICCPR.” The Bush administration’s explanation specifically cited General Comment No. 18, which went on to explain that, “where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions”—even by “granting . . . preferential treatment” as necessary to eliminate such “discrimination in fact.” General Comments 4, 17, and 28 elaborate on this concept of nondiscrimination. In particular, General Comment 28 urges state parties to eradicate “cultural or religious practices which jeopardize the freedom and well-being of female children.”

For this reason, the Human Rights Committee believes that it cannot adequately assess state compliance with Article 24 of the ICCPR without receiving country-specific information regarding the prevalence of FGM and any “measures [taken] to eliminate it.” The Committee routinely chastises state parties for failing to combat FGM, which it expressly identifies as a practice that violates Article 24. Documents ascribing that very goal to the ICCPR include a 1997 joint WHO/UNICEF/UNFPA statement on FGM, a 2004 Congressional Research Service report, a 2008 joint statement of ten international organizations, and a 2018 “Compendium of International and National Legal Frameworks on Female Genital Mutilation.”

Nor is the Human Rights Committee alone in conceiving of FGM as an intolerable form of discrimination against girls and an impediment to their enjoyment of basic human rights. Dozens of statements and resolutions issued by international organizations have done the same. To take just a few examples, these pronouncements have described FGM as “a violation of the human rights of girls and women, including . . . the right to non-discrimination on the grounds of sex;” a form of “gender-based discrimination” that “reflect[s] deep, cultural discrimination against women and girls;” and a violation of “well-established human-rights principles, norms, and standards, including the principles of equality and non-discrimination on the basis of sex.”

This understanding has also taken hold in the United States. The Second, Sixth, and Ninth Circuits have found FGM to be internationally recognized as a violation of women’s and female children’s rights. And according to executive-branch statements from this year alone, FGM “undermines the human rights of women and girls;” the practice is “a serious human rights abuse and a form of gender-based violence and child abuse;” and “any involvement in committing this crime is a serious human rights violation.”

To sum up: Article 24(1) of the ICCPR permits the targeted eradication of discriminatory practices; it “does not [require] identical treatment in every instance.” FGM is a horrific and discriminatory practice that prevents its child victims from enjoying certain “protection[s]” required by their status as minors. The federal FGM statute is—to put it mildly—reasonably adapted to removing this sex-based obstacle to the equal enjoyment of rights recognized by the ICCPR. Thus, the FGM prohibition is “rationally related” to fulfilling the United States’ treaty commitments—contrary to Judge Friedman’s conclusion. Perhaps that is why Congress explicitly relied on the treaty power in enacting § 116(a). (Indeed, three anti-FGM bills introduced in Congress from 1993 to 1996 indicated—in their very titles—a principal objective of “carry[ing] out certain obligations of the United States under the ICCPR.”)

So much for the district court’s analysis of the “rational relationship” standard for treaty implementation. How did DOJ’s analysis measure up?

Not much better. In its § 530D letter, the Department tersely explained why it agreed with the district court on that issue: “[T]he Department has determined that it does not have an adequate argument that Section 116(a) is within Congress’s authority to enact legislation to implement the ICCPR, which does not address FGM. None of the ICCPR’s provisions references FGM at all.” But Article 24(1) references no specific practices, FGM or otherwise. Interpreters must look beyond that provision’s text to know which “measures of protection” are contemplated. DOJ’s magic-words test would instead render Article 24(1) entirely unenforceable.

Moreover, by definition, the Necessary and Proper Clause permits implementation through means that are not expressly “address[ed]” or “reference[d]” in the underlying provision. That is why an implementing statute need be only rationally related to the treaty it seeks to effectuate—a fact that DOJ has recognized in other contexts. Indeed, at the very moment DOJ advanced its crabbed reading of Article 24(1), it was arguing before the D.C. Circuit (in a case called United States v. Park) that “a treaty-implementing statute need not copy a treaty verbatim or limit itself to the treaty’s narrow confines.” DOJ’s brief continued: “In some circumstances, implementing legislation that is broader than the treaty’s minimum requirements may, in fact, be ‘more faithful to the [treaty’s] purpose of enhancing global efforts to combat’ the problem than legislation that tracks the precise language of the treaty’s provisions” (alteration in original). That is exactly right, except that in Nagarwala, the FGM statute was well within the scope of Article 24(1)’s guarantees.

DOJ’s § 530D letter conspicuously failed to cite yet another principle relied on in its Park brief: that “Congress’s necessary-and-proper power, though always broad, ‘is nowhere broader and more important than in the realm of foreign relations,’” because treaty implementation “‘require[s] the making of extremely sensitive policy decisions’” (alteration in original). DOJ’s brief even summarized the core lesson of the Supreme Court’s Medellín decision: that “Congress,” and not the Executive, “must decide how to enforce a non-self-executing treaty.”

Given these factors, DOJ’s assertion that no reasonable argument exists that the FGM statute even rationally relates to Article 24(1) of the ICCPR seems particularly disingenuous. The Department habitually advances muscular conceptions of the treaty power, just as it did before the district court in Nagarwala. Perhaps cutting back on the power to effectuate treaties has become an agenda item for the Trump administration. If so, it is remarkable that the Department’s epiphany occurred in the context of a law prohibiting “an especially heinous practice—permanently mutilating young girls—that should be universally condemned” (to quote DOJ’s own letter explaining its decision).

Do Federalism Principles Constrain Congressional Implementation of Treaty Obligations?

The district court’s rational-relationship holding was enough to dispose of the defendants’ treaty-power challenge. But Judge Friedman went on to articulate bold alternative grounds for this conclusion: that “federalism concerns deprive Congress of the power to enact [§ 116(a)].” (For its part, DOJ did not engage with this question in its letter declining to defend the FGM statute, perhaps because it was advocating an expansive understanding of the treaty power in other pending litigation.)

Judge Friedman noted that Article 2(2) of the ICCPR obligates each state party to fulfill its obligations “in accordance with its constitutional processes”—ones that he regarded as restricting Congress’s implementation of international agreements:

Like the common law assault at issue in Bond, FGM is “local criminal activity” which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress. Therefore, even accepting the government’s contention that the criminal punishment of FGM is rationally related to the cited articles of the ICCPR, federalism concerns and the Supreme Court’s statements regarding state sovereignty in the area of punishing crime—and the federal government’s lack of a general police power—prevent Congress from criminalizing FGM.

I will explain below why FGM is decidedly not a “local criminal activity.” For now, I want to concentrate on the court’s assumption that freestanding federalism concerns can deprive Congress of treaty-implementing authority that it would otherwise enjoy. That premise runs headlong into a directly applicable Supreme Court precedent: the Court’s 1920 decision in Missouri v. Holland. Under Holland, there are certain matters “that an act of Congress could not deal with but that a treaty followed by such an act could.” A statute reasonably adapted to implement a valid treaty “may override” the default allocation of federal and state regulatory authority; “it is not enough to refer to the Tenth Amendment” when attacking treaty-effectuating statutes.

As far as I am aware, Judge Friedman’s decision was unprecedented: it was the first time a court had ever held that a treaty-implementing statute exceeded congressional authority. The Supreme Court affirmed Holland’s continuing validity in both 1999 and 2004. In the 2014 case of Bond v. United States, the Court notably declined to overrule Holland, despite an invitation by one party to do so. Justice Scalia’s separate opinion in Bond—a fountainhead of Judge Friedman’s “federalism concerns”—explicitly recognized that Holland had been “preserve[d]” and “le[ft] in place.” And the Restatement (Fourth) of Foreign Relations Law (2018) affirms Congress’s “constitutional authority to enact legislation that is necessary and proper to implement treaties, even if such legislation addresses matters that would otherwise fall outside of Congress’s legislative authority.” As a result, lower-court judges—regardless of ideological orientation—habitually apply Holland with little fanfare. Prime examples include recent opinions by Judges Diarmuid O’Scannlain, Jay Bybee, and Thomas Griffith.

The Supreme Court remains free to repudiate Holland, of course. But lower courts may not alchemize socio-legal moods into black-letter law—especially when a directly contrary Supreme Court pronouncement remains binding on them. In 1992—as today—Holland was part of the “constitutional processes” available to Congress in implementing the United States’ treaty obligations.

Judge Friedman further observed that the Senate had attached a “federalism” understanding to its instrument of ratification—one that, in his view, could not be squared with a robust conception of the treaty power. Perhaps Judge Friedman was imputing to the Senate an intent to renounce Congress’s Holland authority when advising and consenting to the ICCPR. But even if the Senate could unilaterally disavow Congress’s full power to implement treaties, it did not obviously do so here. Instead, the understanding’s generality smacks of compromise—a ratification-inducing arrangement that garnered support from all nineteen members of the Senate Foreign Relations Committee.

Article 50 of the ICCPR, which engendered the so-called “federalism” understanding, reads as follows:

The provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions.

On its face, Article 50 seemed to anticipate that every state and locality in the United States would take any necessary steps to effectuate the ICCPR’s human-rights guarantees. Allowing federal treaty-makers to conscript state and local governments in this way would go a step beyond what Holland allowed. So it makes sense that the United States would have sought to qualify (or at least clarify) what its subnational units could be required to do as a matter of domestic law.

Accordingly, the Bush I administration proposed—and the Senate attached to its resolution of ratification—the following “understanding”:

That the United States understands that this Convention shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments; to the extent that state and local governments exercise jurisdiction over such matters, the Federal Government shall take measures appropriate to the Federal system to the end that the competent authorities of the state or local governments may take appropriate measures for the fulfillment of the Convention.

As one key participant in the ratification process admitted, this language was “somewhat convoluted.” It is possible to construe the “otherwise” clause as presupposing that Congress would lack “legislative . . . jurisdiction” to implement at least some of the ICCPR’s guarantees. But the understanding’s text did not disclaim reliance on any existing authority; rather, the federal government would be expected to implement the ICCPR’s guarantees “to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein” (emphasis added). Congress’s preexisting powers, of course, included those outlined in Holland—a regime that imposes no federalism strictures on the implementation of valid treaties through rational means.

Far from purporting to claw back on Congress’s Holland authority, moreover, the understanding’s latter half seems to assume its existence. For those matters over which “state and local governments exercise jurisdiction,” the “Federal government” must “take measures appropriate to the federal system” to enable state and local implementation of the ICCPR. As the Bush administration explained, such measures would “remove any federal inhibition to the States’ abilities to meet their obligations” (as opposed to providing federal financial incentives). I can imagine just one type of federal “measure” fit for this purpose: laws clarifying the preemptive effect of federal statutes. But the understanding presumes congressional authority to regulate in such areas, or else there could be no federal statutes whose preemptive reach might need clarifying.

So how did the Senate Foreign Relations Committee itself view the “federalism” understanding? Through the lens of what we now call “anti-commandeering.” As the Committee explained, “[b]ecause of the federal nature of the U.S. system, the Administration proposed an understanding clarifying the degree to which the federal government is obliged to ensure compliance with the Covenant by state and local entities.” The Committee further “anticipate[d] that [any needed] changes in U.S. law . . . will occur through the normal legislative process.” Implementation pursuant to Holland is assuredly part of Congress’s “normal” legislative toolkit. So not only did the Foreign Relations Committee not disavow reliance on Holland; it offered an alternative—and far less controversial—account of what the understanding was meant to accomplish.

The Bush administration, too, commented on its proposed understanding to Article 50. The administration described the understanding’s “inten[t]” as “signal[ing] to our treaty partners that the U.S. will implement its obligations under the Covenant by appropriate legislative, executive and judicial means, federal or state as appropriate.” But notice what this means: with federal–state commandeering off the table, the United States could not guarantee that the ICCPR’s provisions would “extend to all parts of [the United] States” (to quote Article 50) unless Congress would be authorized to effectuate the Covenant’s guarantees. And the administration plainly pledged that “the U.S. will implement its obligations under the Covenant.”

To be sure, the administration forswore any intent to “use the provisions of the Covenant to ‘federalize’ matters now within the competence of the States.” Yet one way of “federalizing” certain matters would be for Congress to require state and local governments to regulate them. Again, that is how the Senate Foreign Relations Committee evidently viewed the “federalism” understanding. (“[T]he administration proposed an understanding clarifying the degree to which the federal government is obliged to ensure compliance with the Covenant by state and local entities.”) And it seems extraordinarily unlikely that the federal government would have wanted to portray the United States as incapable of living up to its promises—powerless to ensure state compliance, and powerless to enact federal implementing legislation.

The Foreign Relations Committee also held a public hearing on ratification of the ICCPR. A State Department Deputy Legal Adviser offered the Committee the following assurance: “where the Federal Government has authorities, the Federal Government will implement the convention.” The administration reiterated this point in a supplemental written response: “Congress remains free, of course, to adopt legislation conforming U.S. law to the requirements of the Covenant through the customary legislative process.” Hardly the antithesis of Holland.

Other voices were heard on this issue, as well. Academics and organizations from across the political spectrum submitted written analyses of the “federalism” understanding. Not one of them attributed to the understanding a clear intent to limit or change Holland’s application in any way. In fact, at least four of these statements explicitly cited the Holland principle as an available method of implementing the ICCPR’s provisions, notwithstanding the “federalism” understanding.

So, no—under current doctrine, federalism concerns do not preclude Congress from criminalizing FGM as a means of implementing Article 24(1) of the ICCPR.

Is FGM a “Purely Local” Crime?

But let’s assume I’m wrong about everything in the previous section. In this alternative world, Holland is no longer good law, and the regulation of “local” crimes—even to fulfill treaty obligations—must be left exclusively to the states. Even in that scenario, Judge Friedman’s treaty-power holding would still be severely mistaken.

The district court’s opinion exhibited the worst vices of adjudicating constitutional claims by intuiting extratextual limits on federal authority. Judge Friedman simply declared FGM to be a “local criminal activity”—“a form of physical assault” whose criminalization by Congress would upset the federal–state balance. Declining to distinguish between more and less “local” applications of FGM, Judge Friedman evidently viewed every such incident as amounting to the sort of localized violence that Congress cannot regulate through the treaty power.

It’s not hard to unsettle the undertheorized distinction between “national” and “local” activities. The Supreme Court has scarcely defined what it means to be “purely local” (or “truly local”). According to the Court, the act of poisoning a romantic rival is quintessentially “local,” as is the mere possession of a firearm. But what about the “mere” possession of other objects—say, devices capable of delivering catastrophic destruction? No one would doubt that every nation on Earth has an acute interest in outlawing the private possession of nuclear weapons or antibiotic-resistant pathogens. So the outward nature of an act cannot alone determine whether it is “truly local,” under Judge Friedman’s Holland-free framework. Surely it must also matter whether the international community has condemned the relevant practice and joined together to eradicate it.

That is precisely what has happened with FGM. The United Nations has embarked on a campaign to eliminate FGM worldwide by 2030, with the United States assuming a leading role. As a high-ranking DOJ official put it last year, FGM “has no place in modern society and must be stopped.” That’s why—according to President Trump’s own executive branch—FGM is “a global issue that transcends our borders” and “a U.S. foreign policy priority.” For nearly 20 years, the elimination of FGM has featured prominently in USAID’s development agenda. The State Department’s annual Country Reports on Human Rights Practices summarize FGM’s continued prevalence abroad. DOJ’s own Justice Manual for U.S. attorneys says that FGM “raise[s] issues of national and international concern” requiring “careful coordination between the Department and senior officials in the foreign affairs and military communities.” In February 2019, a DOJ press release characterized FGM as “a global issue” necessitating “rel[iance] on our domestic and international partners as we work to eliminate this practice.” And even DOJ’s § 530D letter in Nagarwala acknowledged “the importance of a federal prohibition on FGM committed on minors.” It’s no wonder that the Department declined to endorse Judge Friedman’s untenably localized portrayal of FGM.

The point deserves belaboring, given widespread unfamiliarity with the practice of FGM and the reasons for criminalizing it at the federal level. Here is a representative list of other statements from the executive branch—to say nothing of international institutions—underscoring the necessity of an FGM-enforcement regime that knows no jurisdictional bounds:

● “U.S. Government agencies are actively engaged with internationally based working groups to address FGM/C . . . . The strategy marshals the United States’ capacity and expertise to establish a coordinated, government-wide approach to preventing and responding to [FGM].” (USAID, Jan. 2014)

● “FGM/C is a practice that should be eliminated. . . . We applaud the collective efforts of partner governments, NGOs, and multilateral institutions to combat FGM/C.” (White House, Feb. 6, 2015)

● Ending FGM and associated practices “is critical to advancing U.S. foreign policy and security objectives and development priorities.” (State Department, Mar. 15, 2016)

● “Before arrival in the United States, [the Department of] State provides education on FGM/C to both refugees and visa recipients. . . . [T]he federal response to FGM/C requires the efforts of multiple federal agencies.” (Government Accountability Office, June 2016)

● “Efforts to end FGM/C are part of the U.S. Government’s work to protect the health and well-being of, and advance the rights of, women and girls globally. . . . DHS works closely with its interagency partners to end FGM/C . . . . Ending FGM/C in the United States is a DHS priority[.]” (Department of Homeland Security, Jan. 2017)

● “We continue to partner with governmental and non-governmental organizations across the country, and the world, in order to educate ourselves and better identify potential victims and FGM/C practitioners.” (ICE, Nov. 20, 2017)

● “The United States stands in solidarity with governments and communities around the world working to end this human rights abuse. . . . U.S. Department of State officials continue to engage diplomatically with host governments and through bilateral and multilateral partners to end this practice.” (State Department, Feb. 6, 2018)

● “The U.S. government opposes FGM/C, no matter the type, degree, or severity, and no matter the motivation for performing it.” (USCIS, June 15, 2018)

● “It is through collaborative efforts, such as this Female Genital Mutilation Prevention Program, that law enforcement agencies can contribute to the prevention of these serious human rights violations. . . . These partnerships reflect the necessity for a whole government approach to prevention of FGM.” (ICE, June 25, 2018)

● “[T]he U.S. and U.K. law enforcement intend to share intelligence to enhance our knowledge of, and response to[,] female genital mutilation. This collaboration seeks to build our intelligence capacity to identify those involved in perpetrating or facilitating FGM/C offenses whil[e] safeguarding potential victims. . . . FGM is not something we can eradicate alone.” (ICE, Sept. 7, 2018)

● “[FGM] is global in scope,” and DOJ “join[s] U.S. and foreign governmental partners, non-governmental organizations and local communities to call for the eradication of the practice.” (DOJ, Feb. 6, 2019)

● “[T]he U.S. government works with other governments and organizations to help end the practice.” (HHS, Apr. 1, 2019)

Clearly, then, every instance of FGM is—to borrow language from Justice Alito—“a matter of great international concern.” FGM is simply not a type of quotidian criminality whose federal suppression would subvert the constitutional structure.

Not only does the United States’ concern with FGM transcend state and national borders—the practice often occurs transnationally. Young girls are frequently sent abroad to undergo FGM in their families’ countries of origin, a practice known as “vacation cutting.” Alerted to the seriousness of that problem, Congress amended the FGM statute in 2013 to criminalize international transportation for the purpose of subjecting a minor to FGM. In addition, local communities sometimes pool their resources to import “cutters” from abroad to perform FGM on multiple girls in one setting. (Articles in The Washington Post, The Atlantic, and The New York Times highlighted this fact in the months before Congress passed the FGM statute in 1996.)

Even FGM’s “domestic” attributes are hardly “purely local” in nature. According to the FBI (among others), FGM is “being conducted by medical practitioners—physicians, nurses, midwives.” Of course, people do not typically refrain from seeking a desired service merely because an otherwise-accessible provider is located across state lines. Consider the facts of Nagarwala itself: five of the nine minor victims were transported to a medical facility in Michigan from either Minnesota or Illinois. FGM’s sizable economic ramifications also belie Judge Friedman’s characterization of the practice as “purely local.” As the State Department has explained, FGM’s “negative impacts take a toll on economies due to the medical costs associated with FGM/C-related complications.” (Those long-term physical and psychological complications have been well documented in recent executivebranch publications.) Lastly, providers of FGM are—not surprisingly—often compensated for their services, though a fuller account of FGM’s transactional nature is outside the scope of this post.

In sum: even if lower courts needn’t continue treating Holland as good law, § 116(a) hardly represents a limitless arrogation of authority. FGM is a matter of grave concern to the international community, and the United States has committed itself to the practice’s global elimination. The federal FGM statute laudably facilitates a whole-of-government approach to investigating an abhorrent system that thrives on a culture of concealment. Yet due to DOJ’s startling about-face in Nagarwala, that strategy has been endangered by a set of curiously self-disabling (and wholly misplaced) legal scruples.

*       *       *

So what happens now? Along with its § 530D letter, the Justice Department proposed an amendment that would require proof of a nexus to interstate commerce in every prosecution brought under the statute. If “fixed” in this way, the FGM law would be substantially identical to the pre-Nagarwala prohibition. That’s because it would almost always be possible to prove a case-specific connection to commerce (despite Judge Friedman’s insistence that there is “nothing commercial or economic about FGM”). Such a provision would provide a firm foundation for future enforcement, even if forward-looking modifications would be cold comfort to past victims of FGM.

But DOJ should be graded on its entire body of work. The Department chose to reach the conclusions it did, and it chose to leave the FGM statute entirely undefended. Alternatively, DOJ could have agreed to let the House appear as amicus in Nagarwala to defend the FGM statute’s constitutionality, while clarifying that the Department would continue prosecuting the defendants under § 116(a) if Judge Friedman’s decision were reversed. Instead, DOJ moved to dismiss its appeal in the Sixth Circuit only after the House sought to intervene, thereby deliberately foreclosing appellate review of the lower court’s decision. In other words, the Department of Justice did everything in its power to prevent anyone from defending a federal law that prohibits a form of life-altering torture against young girls. One cannot even relate that incontrovertible fact without sounding wild-eyed and accusatory. But that’s because DOJ made such a grievous mistake—one that history should not judge kindly.

As the D.C. Circuit recently explained, “[w]here Congress’s treaty and Commerce Clause powers dovetail, both powers may provide support for the constitutionality of Congress’s actions.” The arguments in favor of § 116(a)’s constitutionality under both theories aren’t just reasonable—they’re right. The FGM statute is still on the books, notwithstanding DOJ’s current refusal to enforce it. The next administration should not hesitate to wield that tool, whether or not it is amended to cure a nonexistent problem. And legal conservatives should fix their attention on issues that actually threaten the structural values they hold dear. Federalism was meant for better things. 

About the Author(s)

Daniel Rice

Counsel at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center - Follow him on Twitter @daniel_b_rice.