Strengthening Constitutional Self-Government

No Left Turns

Can Congress Ban Cloning?

Following up on the cloning story, President Bush is pushing for Congress to pass a bill banning human cloning. Such a bill passed the House this past term, but died in the Senate. With the switch in Senate control, it is believed that the issues will arise with new fervor in the coming term. Current law prohibits those who receive federal funds from cloning, but does not restrict private groups, such as Clonaid (or more reputable groups) from experimenting so long as they don’t receive public funds. This limits the pool significantly, because most major research centers receive some federal funding.

Now the question I put to the fellows, and particularly to Eastman, Allison Hayward, and Masugi: is it permissible for Congress to ban human cloning? Congress’s power is not boundless: they must act within the scope of their constitutionally authorized power. The bill past by the House this past term relied on congressional power under the Commerce Clause to the Constitution to regulate interstate commerce. The bill states in relevant part:

It shall be unlawful for any person or entity, public or private, in or affecting interstate commerce, knowingly--

(1) to perform or attempt to perform human cloning ;

(2) to participate in an attempt to perform human cloning ; or

(3) to ship or receive for any purpose an embryo produced by human cloning or any product derived from such embryo. (emphasis added).

The Supreme Court in recent years has taken a skeptical look at laws past pursuant to Congress’s Commerce Clause power, striking down provisions which made it unlawful to carry a gun on school grounds, and striking down another provision which permitted federal civil suits for violence committed based on gender-based animus. It is not clear to me that cloning is economic activity (let alone interstate) for the purposes of Commerce Clause analysis. For example, the cloning could be done by a non-profit research organization rather than by a for-profit as a commercial exchange. It may be possible to save the statute by doing something like an "as applied" prosecution: prosecutors may only charge those whose cloning activity is actually economic in nature and is performed in interestate commerce. But this would fall short of the absolute ban that Bush seeks. For example, groups could maintain not-for-profit status, or take steps to assure that their activity was intrastate in nature.

There may be an argument under Section 5 of the Fourteenth Amendment (which authorizes Congress to enforce by appropriate legislation the provisions of Due Process, Equal Protection, and, once upon a time, the Privileges or Immunities of citizenship found in the Fourteenth Amendment) because cloning in animals has led to abnormalities including premature death, which we may assume will occur in humans as well. Even if such an argument could be constructed (which I have doubts about), it assumes that an unborn human clone is a person for the purposes of the Fourteenth Amendment, and that would seem highly implausible after Roe.

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