Treaty Interpretation and Commerce Clause Economics in United States v. Nagarwala
In 2019, the United States District Court for the Eastern District of Michigan struck down the FGM Act, a 1996 statute which makes performing female genital mutilation a federal crime. The court held that the FGM Act was an unconstitutional overstep of Congress’ authority to regulate interstate commerce under the Commerce Clause, since FGM is not “economic in nature.” Additionally, the court held that the government could not justify the FGM Act as an exercise of Congress’ authority to implement the International Covenant on Civil and Political Rights (the “ICCPR”), since the court did not interpret the plain language of the treaty as a commitment to eradicate FGM. This Note argues that although the court’s “economic in nature” holding properly applied an increasingly narrow interpretation of the Commerce Clause, its ICCPR holding failed to consider extra-textual sources usually employed in treaty interpretation. This Note also suggests that Congress may have clearer authority to criminalize FGM if the United States ratified the Convention on the Elimination of Discrimination Against Women (“CEDAW”), a treaty the United States has only signed.
Recommended Citation: Michael Campbell, Treaty Interpretation and Commerce Clause Economics in United States v. Nagarwala, 43 Fordham Int'l L.J. 1295 (2020).