From: Mike Lorrey (mlorrey@datamann.com)
Date: Sun Aug 12 2001 - 12:57:17 MDT
Russell Blackford wrote:
>
> I'm not sure what Charles is asking for.
>
> (1) I assume there is a power in the US constitution that enables federal
> research funding, probably with delegation to the executive branch. If so,
> the President can use this selectively, no? What am I missing?
The Constitution says that the congress shall encourage the arts and
sciences, and the government is empowered to conduct and pay for
research into any science or technology which involves issues of
national security.
The big problem is that saying something can be done is not the same as
paying for it. Congress may pass a bill to conduct stem cell research,
but if they only appropriate a million bucks for it, they are
essentially killing it off. Authorizations are separate from
appropriations. Furthermore, what congress authorizes and appropriates
is not necessarily what the President chooses to execute. There is
literally billions in funding in accounts for various programs which the
administrations refuse to actually take action on.
The EPA's Superfund, for example, accumulated hundreds of billions of
dollars over the years before anyone actually used that money to do
hazardous waste cleanups. The airport trust fund is similarly stuffed
with money that isn't being spent on new airports because of local NIMBY
legal action.
>
> As for the ban on human cloning, that sounds harder, coz...
>
> (2) In the US or Australia, you have to find a constitutional head of power
> (such as the interstate commerce clause, which has been read *very* widely
> by the courts in the US) before the federal legislature can enact any law at
> all. Otherwise, legislative power is left entirely with the states, which
> can enact laws on any subject. (In Canada, the situation works in reverse:
> the provinces have enumerated powers with a default power to the national
> legislature to enact laws on anything.)
Actually, under US v. Lopez and a few more recent cases, the interstate
commerce clause has been interpreted far more narrowly. The problem is
no longer in its proper interpretation, but in establishing 'standing',
which the courts interpret VERY narrowly as well, making it difficult
for taxpayers to contest acts of congress which are overly broad
applications of the clause.
>
> It is widely commented upon here that it is not clear what power the federal
> legislature has to ban human cloning. It may have to fall back on the
> foreign affairs power, but I'm not aware what international treaties we may
> be party to that would require us to pass such legislation. Someone in the
> US might well ask the same question.
Yes, you will notice that the stem cell issue deals only with federal
funding. They really cannot do anything about privately funded research,
unless they plan to do a direct assault on Roe v. Wade and are able to
back it up with scientific proof of human life at conception.
What they will do is essentially what they do under the income tax laws:
make anyone who is either a federal employee, corporate officer, or
government benificiary (as anyone with a bank account, or any other SEC
approved security, is), comply with the cloning law.
They can also go at it from the doctor level: No doctor or medical
institution that participates in medicaid or medicare can receive funds
and perform cloning as fertility treatment, no med student or doctor
with government loans for college can perform clonings. Similarly, they
can mandate that the states must add an anti-cloning clause to their
medical license regulations.
> Or is Charles talking about...
>
> (3) a constitutional *restriction* on power, as opposed to the availability
> of an appropriate head of legislative power in the first place? If that's
> what he means, he may be right, though it's very open to argument. In the
> Martha Nussbaum and Cass Sunstein book _Clones and Clones_, Sunstein's
> contribution is a brilliant piece in which he writes two imaginary Supreme
> Court opinions, one for and one against the proposition that reproductive
> cloning (like contraception and abortion) falls within the supposed implied
> constitutional right of "privacy" in the US Bill of Rights. Anyone
> interested in *this* aspect of the US constitutional situation should start
> with Sunstein's piece.
Interesting. Is this on the web?
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