Congressional Authority to Enact Criminal Law: Female Genital Mutilation (FGM) [June 21, 2019] [open pdf - 626KB]
From the Document: "18 U.S.C. § 116 proscribes female genital mutilation (FGM), a practice rooted in traditional or religious beliefs in certain parts of Africa, Asia, and the Middle East. Among other things, the federal statute (FGM statute) makes it a crime to knowingly circumcise, excise, or infibulate the labia majora, labia minora, or clitoris of a minor unless a medical exception applies. Though the FGM statute was enacted in the 1990s, it went essentially unused for over twenty years. Then, in April 2017, federal prosecutors brought charges under the statute in the Eastern District of Michigan against two physicians, medical support personnel, and several mothers who allegedly brought their daughters to the physicians for FGM procedures. In November 2018, however, the district court dismissed all of the FGM charges in that case--'United States v. Nagarwala'--on the ground that Congress lacked constitutional authority to enact a central piece of the FGM statute. The district court's decision and subsequent developments in the case have spurred significant commentary regarding Congress's legal options to restrict FGM and, more broadly, the limits of Congress's authority to enact criminal law. This Legal Sidebar accordingly provides a brief overview of Congress's power to enact federal criminal law, explores the district court's decision in 'Nagarwala' and the current status of the case, and addresses possible amendments to the FGM statute that might pass constitutional muster."
CRS Legal Sidebar, LSB10313
Congressional Research Service: https://crsreports.congress.gov/