Should Cloning Be Legal?

It's not a federal question

By Dave Kopel, research director for the Independence Institute, & Glenn Reynolds, professor of law at the University of Tennessee.

National Review Online April 16, 2001 10:25 a.m. More by Kopel on technology controls.

President Bush has weighed in on cloning. He's against it. According to White House Press Secretary Ari Fleischer, "The president believes that no research — no research — to create a human being [by cloning] should take place in the United States. He opposes it on moral grounds." Bush is ready to sign legislation that bans research into human cloning as soon as Congress sends it to him.

The president's moral views on cloning are not unreasonable — though any time you find yourself agreeing with Luddites like Jeremy Rifkin and Kirkpatrick Sale is probably a good time to reconsider whether you're right. But whether or not cloning research is a bad idea, the president needs to spend a lot more time thinking about whether it's something that the federal government even has the power to ban.

The federal government, as the president has reminded us, is a government of limited powers, powers that are enumerated in the Constitution. And nothing in the Constitution grants the federal government the power to ban research into cloning, or to suppress other types of science.

The fact that Congress has the power to raise armies, enact bankruptcy laws, and create a Postal Service obviously doesn't give Congress the power to ban scientific research. There's only one enumerated power of Congress for which even a bad-faith argument can be made in favor of congressional power. The Constitution grants Congress power "to regulate Commerce with foreign nations, and among the several states, and with the Indian Tribes" (Art. I, sec. 8, cl. 3). From the 1960s through the 1980s, the Supreme Court interpreted this congressional power to regulate some types of commerce as congressional power to regulate anything, anytime, anywhere.

In the 1995 case, United States v. Lopez, the Supreme Court declared that Congress could not use its power "to regulate Commerce … among the several states" as a pretext to ban simple possession of firearms near schools. Justice Clarence Thomas pointed out that it was absurd to argue that the power to regulate interstate commerce was the power to regulate everything. If so, it would have been pointless for the Founders to bother listing various congressional powers (e.g., bankruptcies, copyrights, taxes), since the power to regulate interstate commerce would be the same as the power to do everything.

Chief Justice Rehnquist's majority opinion for the Court set forth the three circumstances under which Congress may use the interstate-commerce power:

(1) To regulate the channels of interstate commerce. For example, requiring that a product may only be sold across state lines under certain conditions. This is really the core of the interstate-commerce power, which was originally created primarily to give Congress the power to legislate against state barriers to interstate trade. So under the Lopez rules, Congress could probably bar the interstate sale of cloned goods. That's not the same as barring research that takes place within a state.

(2) To regulate the instrumentalities of interstate commerce. For example, setting labor and safety standards for railroads and airplanes (obviously irrelevant for a research ban.)

(3) To regulate economic activity that has a substantial effect on interstate commerce. As Justice O'Connor explained in a 1985 case, the reason that Congress, which has authority only over interstate commerce, can sometimes regulate intrastate commerce is because of the separate congressional power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" (Art. I, sec. 8, cl. 18). Say Congress wants to prohibit the interstate sale of pelts from endangered animals; Congress finds that it is impossible, as a practical matter, to stop the interstate sale unless Congress also bans the local sale. The ban on local sales would "necessary and proper" to the ban on interstate sales.

Can a cloning research ban be upheld under prong three of Lopez? Probably not.

Scientific research may involve money (e.g., researchers earn salaries, equipment must be purchased), but the Supreme Court doesn't believe that everything that has some connection to money is necessarily an economic activity. In Lopez, the defendant took a gun onto school property for the purpose of completing a gang-related sales transaction. The Court didn't find that the act of gun possession was thereby transformed into economic activity.

Here's another example: Even though selling books across state lines is an economic activity, mere reading is not an economic activity — even if what one learns from reading will have economic consequences. Similarly, mere research might not be considered an economic activity. Most people wouldn't say that a classroom discussion between a professor and his students classifies as "commerce." Academic inquiry may require paying salaries, but that doesn't turn the academic research itself into commerce.

Cloning-ban advocates could certainly point out that cloning research eventually affects the national economy. Researchers will buy and sell products; depending on what the researchers discover, various other products will be bought and sold; some of those transactions will cross state lines.

But this kind of attenuated reasoning hasn't been popular with a majority of the Court lately. In Lopez, the Solicitor General (and the four dissenting Justices) pointed out that guns near school sometimes affect the quality of education, and education affects a person's earning power, and thus affects interstate commerce.

Last summer, in the Morrison case, Congress had attempted to use the interstate-commerce power to allow victims of sexual assault to sue in federal court. The Solicitor General (and the Court's four dissenters) argued that sexual assault makes women more reluctant to participate in interstate commerce, as well as in other aspects of economic life, and, therefore, sexual assault substantially affects the national economy.

In both the Morrison and Lopez case, the Court's majority pointed out that the national economy isn't the same as interstate commerce. If the "everything-eventually-affects-the-economy" reasoning were allowed to hold sway, the Court explained, the federal government would enjoy infinite, not limited and enumerated, powers.

Even if the Supreme Court were to repudiate Lopez and Morrison, and to start allowing Congress to make any law it wants on any subject, President Bush shouldn't go along. He campaigned on federalism, not on expanding the aegis of centralized power.

Of course, the fact that Congress doesn't have power over a particular issue doesn't present state legislatures from considering laws about guns near schools, sexual assault, and cloning research. Likewise, Congress has the choice of barring the use of federal funds to support cloning research.

President Bush has spoken of his admiration for two Justices who defend federalism with great vigor: Clarence Thomas and Antonin Scalia, both of whom were in the majority in Lopez and Morrison. We hope that President Bush thinks seriously about the lessons that these Justices have to teach about limits to federal power — for these lessons are simply reminders of the plain language and original intent of our Constitution.

The first paragraph of the legal analysis in Lopez ought to be inscribed on the heart of every federal official:

"We start with first principles. The Constitution creates a Federal Government of enumerated powers. See U.S. Const., Art. I, 8. As James Madison wrote, '[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.' The Federalist No. 45. This constitutionally mandated division of authority 'was adopted by the Framers to ensure protection of our fundamental liberties.' Gregory v. Ashcroft, 501 U.S. 452, 458 (1991). 'Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.' Ibid."

When you occupy the bully pulpit, there is a strong temptation to impose a Washington, D.C., solution whenever a problem hits the nightly news. But if President Bush is to live up to his promises of limited government — and the hopes of the people who elected him — he must exercise the humility and restraint that have been hallmarks of his administration to date, and he must recognize that not all problems are federal problems.

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