Tuesday, October 6, 2020
Biden Pledges To Make “Roe The Law Of The Land” If Overturned By The Supreme Court – JONATHAN TURLEY
Last night’s NBC’s town hall in Miami with former Vice President Joe Biden was panned, to quote Politico’s Marc Caputo, as another “Biden Informercial” that protected the candidate from both tough questions and skeptical voters. There was not a single question on Biden refusing to answer whether he supports packing the Supreme Court, a move supported by his running mate Kamala Harris and various top Democrats in this election. However, Biden did make one notable comment about the Court and nominee Amy Coney Barrett. He said that, if Barrett helped reverse Roe v. Wade, he would make “Roe the law of the land.”
If Roe were overturned, Biden declared his “only response to that is pass legislation making Roe the law of the land. That’s what I would do.”
The comment was notable in a number of respects. First, states could challenge such a move. As with Biden’s declaration that he will require mandatory mask wearing nationwide, there are serious questions over his authority to compel such action due to federalism limitations. If the Supreme Court struck down Roe, it would be presumably based on the position that it is not a constitutional right. Biden would then order states to guarantee something that is not constitutionally required. That would put the Biden Administration on a collision course with the Tenth Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Well, then he'd just pack the court. No problemo!