- Circumcision allegations involve minor girls as young as 6
- Justice Department has proposed legislative fix to statute
The House has ignited a constitutional battle with the Trump administration over the first federal prosecution of female genital mutilation — despite mutual condemnation of the alleged offense as heinous.
Speaker Nancy Pelosi (D-Calif.) is making a risky legal move that could prompt judges to limit Congress’s ability to intervene in cases. The House has gone to court to try to revive the criminal charges against a Michigan doctor. Federal prosecutors had brought the charges in 2017 but decided not to appeal after a trial judge dismissed them.
The House’s intervention request tests the legal boundaries of when Congress is permitted to replace the Justice Department as the U.S. government’s representative in court after an administration declines to defend a statute’s constitutionality.
Legal experts say they can’t recall a previous case when Congress sought to replace the Justice Department in any phase of an ongoing criminal case.
House Democratic leaders are seeking permission from the 6th U.S Circuit Court of Appeals to appeal of the judge’s dismissal of the charges brought under the 1996 law that outlaws genital circumcision of female minors.
They decided to try to intervene after the Justice Department notified Congress in April that it “lacks a reasonable defense’’ to the judge’s finding that the law is unconstitutional. But Pelosi sees the case differently.
“The Trump administration’s sudden refusal to advance legal arguments to defend a long-standing federal statute criminalizing this horrific act disrespects the health and futures of vulnerable women and girls,’’ Pelosi said in a May 1 statement announcing the House’s legal step. Pelosi has long championed women’s rights and became speaker this year after a record 89 Democratic women were elected to the House.
The case has drawn attention to the practice of circumcision of young girls.
One of two seven-year old girls brought to the Livonia, Michigan, clinic from Minnesota in February 2017, told an investigator that “after the procedure she could barely walk because of the pain,’’ prosecutor Sarah Woodward told a magistrate, according to a transcript of a detention hearing for the doctor. Another girl told investigators that “she screamed in pain and was told to be quiet,” Woodward said. The prosecutor said the investigation determined that some the girls were as young as six.
The eight defendants in the case are members of the Dawoodi Bohra sect of Islam, which is largely based in India and Pakistan.
The trial judge found the 1996 federal law barring genital circumcision of female minors unconstitutional because its definition of the crime didn’t specify a connection to interstate commerce, Congress’s primary legislative jurisdiction.
The Justice Department argued in court papers filed May 31 that the House was making an unprecedented request to “keep alive a criminal prosecution that the executive branch no longer wishes to pursue on appeal’’ after government lawyers “reluctantly agreed’’ with the trial judge’s decision.
“Under our separation of powers, Congress—let alone a single House—cannot intervene and assume control of litigation, simply because it disagrees with the manner in which the executive has chosen to execute the laws,’’ Assistant Attorney General Brian Benczkowski, who heads the Justice Department’s criminal division, said in the pleading.
Justice proposed technical language in April to provide that jurisdictional connection and argued in its brief that Congress should act to amend the statute to fix it rather than try to litigate the issue in court. “Given the broad condemnation of this abhorrent practice, it is inexplicable that the House has not acted on the department’s proposal,” the government’s brief said.
The case may also intensify debate over whether it’s ever appropriate for the legislative branch, which the Constitution assigns with writing the laws, to exercise the executive-branch power of enforcing those laws.
The dispute comes as the federal judiciary considers when it can referee political fights between Congress and the president. A federal judge’s June 3 refusal to allow the House to sue to stop President Donald Trump’s diversion of appropriated funds to build a border wall deals with a different question: whether lawmakers can bring suit in the first instance rather than intervening in an ongoing case.
The Supreme Court has offered only limited guidance on such intervention because “there is very little history of either the House or the Senate intervening at all in any case,’’ much less a criminal prosecution, said Tara L. Grove, a former Justice Department lawyer who teaches at the William & Mary Law School in Williamsburg, Va.
Almost four decades ago, Congress intervened in a case challenging the one-chamber veto of an attorney general’s decision to waive deportation of an alien because the Justice Department declined to defend the veto provision. The Supreme Court set aside the legislative veto in its 1983 decision in I.N.S. v. Chadha.
More recently, the Republican-led House intervened to uphold the Defense of Marriage Act that barred federal recognition of same-sex marriages after the Obama administration said it could not defend its prohibition of a federal estate-tax exemptionclaimed by Edith Windsor, the surviving partner of a same-sex marriage.
The Supreme Court’s landmark 2013 decision in U.S. v. Windsor invalidated the law, helping pave the way for the widespread adoption of state laws legalizing same-sex marriage.
But Grove said the case didn’t clarify the basis of congressional intervention in court cases.
In his dissent, Justice Antonin Scalia said Congress could only intervene in such cases when the exercise of one of its powers—such as the one-chamber veto—was at stake.
“Courts will be squeamish’’ about the House’s intervention request in the female circumcision case because, under Scalia’s theory, “the House can’t claim that it is being harmed as an institution,’’ Grove said.
Peter Henning, a former Justice Department fraud prosecutor who teaches law at Wayne State University in Detroit and has followed the female genital mutilation case closely, agreed with the government’s argument that the House was trying to usurp a core executive power, criminal prosecutions.
“This is a criminal case, only the Justice Department has the authority to prosecute at the federal level,’’ Henning said. The House “just can’t come in and say, `We want to lead an appeal’ in a case where the Justice Department has said `We respect the judge’s decision,’” he said. “That is really a decision that the Justice Department gets to make.”
The House’s Bipartisan Legal Advisory Group, which includes the speaker and the floor leaders and whips of both parties, voted 3-2 along partisan lines to authorize House General Counsel Douglas Letter to ask the 6th Circuit for permission intervene and defend the law in the Justice Department’s stead.
If the appeals court decides the House can’t intervene, then U.S. District Judge Bernard Friedman’s ruling would end the first federal criminal prosecution under the 23-year-old statute.
Dr. Jumana Nagarwala and three co-defendants still face other charges, including conspiracy to obstruct the government’s investigation. These defendants include a doctor who owns the suburban Detroit clinic where prosecutors charged the procedures were conducted over a 12-year period.
Their trial is on hold while the 6th Circuit considers the House’s request, and it could be delayed as long as a year if it allows House General Counsel Douglas Letter to argue the appeal. Two Minnesota women accused of bringing two young girls to the clinic to undergo the procedure were dismissed from the case by the trial court.
Defense lawyers also opposed the House’s request and joined the Justice Department in a separate motion to dismiss the appeal.
In response to the case, Michigan lawmakers passed a series of laws, signed by then Gov. Rick Snyder (R) in 2017 that imposes stiffer penalties than the federal statute for those convicted of female genital mutilation and provided more support for victims of the practice. The law’s enactment wouldn’t allow state prosecutors to charge the defendants in the federal case.
The case isU.S. v. Nagarwala, 6th Cir., No. 19-1015, brief filed 5/31/19.
To contact the reporter on this story: James Rowley in Washington at firstname.lastname@example.org