The President's Power: Codifying Laws

In the United States, the President does not have the power to codify a law. While the President has various powers under the Constitution, including the authority to issue executive orders, the states are the basic source of lawmaking, and Congress is limited to the powers specifically enumerated in the Constitution. Following the Supreme Court's decision to overturn Roe v. Wade, there have been calls for Congress to codify Roe and establish a national right to choose abortion. However, this would require careful drafting and a sufficient number of votes in the Senate, which is currently controlled by Republicans, making it an uphill battle.

The role of the president

The president of the United States has a variety of powers under the Constitution, including the authority to issue executive orders. However, the president cannot make or codify laws, as this power is reserved for state legislatures and Congress. While Congress has the power to pass laws, it is limited to the powers specifically enumerated in the Constitution.

In the context of abortion rights and the recent overturning of Roe v. Wade, President Joe Biden has called on Congress to codify abortion rights into law. Biden has also issued an executive order calling on government officials and agencies to promote access to reproductive care, including abortion. Despite Biden's efforts, the current political makeup of Congress makes it unlikely that abortion rights will be codified into law.

It is important to note that while the president cannot directly codify laws, they can influence the law-making process through their powers of persuasion and negotiation with Congress. Additionally, the president has the power to veto legislation passed by Congress, which can shape the law-making process.

In summary, while the president of the United States does not have the direct power to codify laws, they can play a significant role in shaping legislation through their constitutional powers, influence over Congress, and veto power.

The role of Congress

Congress's power to pass laws is not unlimited and is restricted to specific areas outlined in the Constitution. For instance, Congress can regulate commerce between states, but the Supreme Court has ruled that this power only extends to economic activities. This limitation was evident in the ruling regarding the federal government's inability to ban gun possession in "school zones."

In the context of codifying Roe v. Wade, Congress faces challenges due to political dynamics and the need for a sufficient number of votes. With a Republican-dominated Congress, there is reluctance to enshrine Roe v. Wade into law. Additionally, the filibuster rule in the Senate requires a significant number of votes (50 or 60) to pass certain legislation, further complicating the process.

Despite these challenges, Congress can still take actions to alleviate the impact of rulings like Dobbs v. Jackson Women's Health Organization, which removed federal constitutional protection for abortion rights. These actions may include strengthening protections for women's health and privacy, as well as pushing for statutes that make it harder for future presidents to revoke these protections unilaterally.

Furthermore, Congress has the responsibility to carefully craft legislation that can withstand legal challenges and ensure its constitutionality. This involves using precise language and ensuring that any law passed does not contradict or change constitutional law. In the case of codifying Roe v. Wade, this would mean navigating the complex dynamics surrounding abortion rights and state-level decisions.

Roe v. Wade

In the United States, the President does not have the power to codify a law. The power to codify laws is vested in the Congress, which is limited to the powers specifically enumerated in the Constitution.

However, in 2022, the Supreme Court overturned Roe v. Wade, holding that it was no longer the law of the land on abortions. This decision was made by a majority of conservative justices and was seen as a culmination of decades of efforts to overturn the ruling. The ruling had far-reaching consequences, with state laws banning abortion taking effect immediately, jeopardizing the health and lives of women across the nation.

Following the Supreme Court's decision, there were calls for Congress to codify Roe v. Wade and restore the protections it afforded as federal law. President Joe Biden, who opposed the overturning of Roe v. Wade, urged lawmakers to act and requested the Senate to create an exception to its filibuster rule to allow a vote on a bill to codify Roe. However, due to the divided nature of the Senate and the need for a supermajority to overcome the filibuster, the chances of passing such legislation were slim.

While Congress has attempted to codify Roe v. Wade, it has yet to succeed. Liberal states like Massachusetts have passed laws codifying the decision, and other states have taken steps to protect residents who seek abortions out of state. The Ensuring Access to Abortion Act, passed by the House, is an example of federal legislation aimed at protecting abortion rights, but it faces an uphill battle in the Senate due to the filibuster.

The Dobbs ruling

In a 6-3 ruling, the Supreme Court upheld Mississippi's abortion law and, in a 5-4 vote, found that there is no constitutional right to abortion. The Court's decision reversed nearly 50 years of precedent and was based on a highly constrained and antiquated view of what constitutes a fundamental constitutional right. Justice Alito, who wrote the majority opinion, asserted that for a right to be protected by the Constitution, it must be explicitly spelled out in the text or "deeply rooted in [our] history and tradition." The Court's ruling in Dobbs v. Jackson Women's Health Organization took an almost exclusively regressive view, looking at reproductive rights from the lens of the mid-1800s and earlier to determine whether the Constitution confers a right to abortion.

The Dobbs decision had significant implications for abortion rights in the United States, overturning Roe v. Wade and Planned Parenthood v. Casey, and returning abortion policy decisions to state governments. The ruling effectively abandoned the Court's duty to protect fundamental rights, and advocates and politicians called on states and Congress to codify Roe v. Wade into law to secure abortion rights.

While the President and Congress have extensive powers, they cannot easily change the law to protect abortions. However, President Biden issued an executive order following the Dobbs decision, directing government officials and agencies to promote access to reproductive care, including abortion. Additionally, the Department of Health and Human Services strengthened privacy protections for medical records related to reproductive health care.

The filibuster

In the case of codifying Roe v. Wade, the filibuster has played a crucial role. After the Supreme Court overturned Roe v. Wade, there were calls for Congress to codify abortion rights into federal law. However, due to the filibuster rule, 60 votes would be needed in the Senate to pass such legislation, and these votes were not available. This led to discussions about ending the filibuster or creating a filibuster exception for this specific issue, but these efforts have not gained sufficient support.

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