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United States presidential candidate Vivek Ramaswamy stated he doesn't support a federal ban on abortion, a practice which he understands to be murder, because the U.S. federal government doesn't regulate murder (emphasis added):

For years, I was an opponent of Roe v. Wade. I think it was constitutionally wrongly decided. I think Dobbs was correct to overturn it because the federal government has no business here. Murder laws are governed by the states. So if abortion is a form of murder, which is the pro-life position, and I am pro-life, then it would make no sense for that to be the one law that was still governed at the federal level.

However, isn't it true that murder is regulated by the federal government as well? Is Vivek Ramaswamy correct in claiming that murder is governed solely by the states?

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    – feetwet
    Commented Jun 12, 2023 at 20:02

3 Answers 3

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It's a bit of an oversimplification. You're correct that there is a federal law against murder, 18 USC 1111. However it applies only to a murder committed in the special maritime and territorial jurisdiction of the United States. This covers situations like crimes committed on federal lands such as national parks or federal buildings, or crimes on US-flagged ships at sea, aircraft in flight, or in space. It does not apply to "ordinary" crimes committed at most locations within the US.

18 USC Chapter 51 covers a few other situations, such as murder of a federal officer, foreign diplomat, by incarcerated or escaped federal prisoners, US nationals murdering each other while abroad, and so forth.

The idea is that these restrictions keep the laws within the enumerated powers of Congress as stated in Article I Section 8 of the US Constitution. A federal statute covering all murders throughout the US would probably be unconstitutional for this reason.

So while what he says is not strictly correct, it is true that in the vast majority of cases, murders are covered by state laws and not by federal laws. Even if one was to agree with Ramaswamy that medical abortions are a form of murder, even still, no federal murder law currently on the books would apply to a typical abortion, except under very unusual circumstances.

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  • The big open question is whether the Comstock Act, 18 U.S.C. 1461 Section 1461, imposes a broad national abortion restriction under existing law. A U.S. Office of General Counsel opinion from December 23, 2022 argues it does not, but this conclusion is hotly disputed. See justice.gov/olc/opinion/file/1560596/download
    – ohwilleke
    Commented Jun 9, 2023 at 19:57
  • "no federal murder law currently on the books would apply to a typical abortion" A US citizen getting an abortion while overseas would count.
    – nick012000
    Commented Jun 9, 2023 at 22:11
  • See en.wikipedia.org/wiki/Partial-Birth_Abortion_Ban_Act
    – Brian
    Commented Jun 10, 2023 at 13:22
  • Consistent with this, Congress would be within its rights to pass laws regarding abortion in military hospitals. And after Dobbs, there was much speculation about an executive order authorizing abortion facilities in federal parks.
    – Barmar
    Commented Jun 11, 2023 at 13:18
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    This seems an appropriate place to point to this interesting article - The Perfect Crime (Kalt, 2005) - it has a wikipedia page too with the follow-up.
    – davidbak
    Commented Jun 11, 2023 at 15:58
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This Is Not An Accurate Statement Of U.S. Constitutional Law

State governments have "plenary" (i.e. unlimited) power to enact any legislation authorized by the state's constitution which is not contrary to the U.S. Constitution or federal law.

Every U.S. state has statutes defining and punishing various grades of homicide.

The federal government may only enact legislation specifically authorized by the U.S. Constitution which is not, in principle, at least, plenary, although it is very broad.

In practice, while the federal government has enacted federal criminal homicide statutes, those statutes are piecemeal and generally involve some interstate, international, maritime, or federal government related nexus.

For example, there are quite a few federal statutes that criminalize the murder of federal officials. The federal government has piracy statutes that criminalize conduct including murder committed on the high seas where no U.S. state has jurisdiction, parallel statutes that criminalize murders connected to air travel, and statutes that criminalize murder in places where no U.S. state or territorial government has jurisdiction like unincorporated federal territories in the Pacific Ocean. Murders of members of Indian Tribes by other members of Indian Tribes on an Indian Reservation are prosecuted in federal courts by federal prosecutors rather than in state or territorial courts. The federal government has statutes like the Racketeering and Corrupt Organizations Act (RICO) that criminalize organizations and de facto organizations of people who commit multiple "predicate crimes" one of which is murder if it implicates interstate commerce. And so on.

As Wikipedia explains:

If murder is committed within the borders of a state, that state has jurisdiction, and in a similar way, if the crime is committed in the District of Columbia, the D.C. Superior Court (the equivalent of a state court in the District) retains jurisdiction, though in some cases involving U.S. government property or personnel, the federal courts may have exclusive jurisdiction.

If, however, the victim is a federal official, an ambassador, consul, or other foreign official under the protection of the United States, or if the crime took place on federal property or involved crossing state borders, or in a manner that substantially affects interstate commerce or national security, then the federal government also has jurisdiction. If a crime is not committed within any state, then federal jurisdiction is exclusive, for example vessels of the U.S. Navy or the U.S. Merchant Marine in international waters and U.S. military bases worldwide. Recently, the Supreme Court, in the McGirt decision, reaffirmed that major crimes within the reservation boundaries of Native American tribes, for which a tribal member is suspected, must be investigated and prosecuted by the federal, not state, government. Federal penalties will apply if found guilty.

In addition, murder by a member of the United States Armed Forces of a prisoner while under custody of the United States Armed Forces is in violation of Article 118 of the Uniform Code of Military Justice and can result in the perpetrator being tried by a general court-martial, subjecting to certain types of jurisdictions within its own borders or with foreign nations.

So, yes, the federal government does have all sorts of laws prohibiting and punishing murder in a variety of specific circumstances with some federal hook. Some of those law are even generally applicable throughout the United States (e.g., the federal homicide offense of murdering a postal worker).

As a matter of constitutional law, while the federal government doesn't have complete plenary power to adopt the equivalent of a state murder statute with no federal government jurisdictional hooks whatsoever (see United States v. Lopez,m 514 U.S. 549 (1995), which held that the federal government didn't have the power to prohibit gun possession in school zones under the authority granted to it by the Interstate Commerce Clause), it could clearly criminalize far more murders at the federal level than it does.

It is unquestioned, as a matter of constitutional law, that Congress can criminalize all intrastate bank robberies and all intrastate thefts of controlled substances. Congress could regulate far more murders as well, if it wanted to do so.

This Stance Appeals To A GOP Minority That Thinks The Courts Have Allowed Congress To Exceed Its Limited Constitutional Authority To Legislate

A significant subset of conservative political activists are ideologically opposed to the breadth of federal legislative authority which the courts have permitted under the Interstate Commerce Clause and a few other less commonly used hooks (most notably power of Congress to spend federal money for the general welfare and to use that spending to bribe states to adopt substantive state policies).

Mr. Ramaswamy's rhetoric is crafted to appeal to this minority within the conservative movement (the majority of both liberals and conservatives don't really care about federalism except as a tool to serve policy goals when it presents itself). But this isn't actually the law and if anyone tried to really enforce this narrow view of limited federal power across the board rather than to support selective political objectives, the conservative movement would swiftly disavow it.

This Does Reflect A Long Standing Bipartisan Criminal Justice Federalism Consensus

The federal government could also clearly devote more resources than it does to prosecuting homicides under existing federal homicide statutes, that it instead allows state governments to handle.

But, while Mr. Ramaswamy isn't strictly correct that the federal government doesn't regulate murder as a matter of constitutional law authority, it is also true that the criminal justice enforcement related to homicides is predominantly a state level activity. This practice has been the living law in the United States for a very long time.

For example, in 2021 there were 22,900 reported non-negligent murders in the United States. Of those murders, 54.4% (12,478) of them were solved, predominantly through state court criminal prosecutions, and secondarily through the death of a few hundred murders a year in the course of the offense, an attempted arrest, or by suicide shortly after committing the murder.

But, there were only 311 federal non-negligent homicide prosecutions in that year. Thus, only about 3-4% of all homicide prosecutions are brought under federal criminal statutes, and the balance are brought under state criminal statutes.

Territorial v. Subject-Matter Federal Homicide Prosecutions

Moreover, a large share of the federal criminal homicide prosecutions (probably at least a majority of them) involve murders on Indian Reservations or in some other circumstance where the justification for federal involvement is territorial, rather than under federal laws that are generally applicable throughout the United States.

It would be unreasonable to interpret the statement from Vivek Ramaswamy that the federal government "doesn't regulate murder" to mean that he was saying that murder should be legal in places where the federal government has exclusive jurisdiction to the exclusion of any state government (such as the on the high seas or Indian Reservations or in unincorporated federal territory).

Only about 1-2% of homicide prosecutions in the U.S. (outside of places where the federal government's authority over murder charges is territorial) are prosecuted in federal court, under federal laws without territorial limitations.

To that point, I wouldn't be surprised that Mr. Ramaswamy would favor strict regulation of abortion in circumstances where there is no state or territorial or Indian Reservation jurisdiction over the issue.

So, while Mr. Ramaswamy isn't accurate as a question of constitutional law about the authority of the federal government to criminalize murder, his statement does reflect what has been a widely held bipartisan policy consensus for as long as the U.S. has existed.

Side Point: Federal Death Penalty Prosecutions Are Rare

Incidentally, the federal government has brought about 1% of death penalty homicide prosecutions. You can count on your fingers the number of federal death penalty prosecutions committed in states without a death penalty, since the death penalty was reinstated, post-Furman in about 1976.

From 1976 to 8 December 2016, there were 1,533 executions. . . . The South had the great majority of these executions, with 1,249; there were 190 in the Midwest, 86 in the West, and only 4 in the Northeast. No state in the Northeast has conducted an execution since Connecticut, now abolitionist, in 2005. The state of Texas alone conducted 571 executions, over 1/3 of the total; the states of Texas, Virginia (now abolitionist), and Oklahoma combined make up over half the total, with 802 executions between them.

(Source)

16 executions have been conducted by the federal government since 1963.

Of the 16 federal executions took place since 1976, 13 took place during the last six months of the Trump Administration. Specifically:

The last pre-Furman federal execution took place on March 15, 1963, when Victor Feguer was executed for kidnapping and murder, after President John F. Kennedy denied clemency. . .

From 1988 to October 2019, federal juries gave death sentences to eight convicts in places without a state death penalty when the crime was committed and tried. . . .

No federal executions occurred between 1972 and 2001. From 2001 to 2003, three people were executed by the federal government. No further federal executions occurred from March 18, 2003, up to July 14, 2020, when they resumed under President Donald Trump, during which 13 death row inmates were executed in the last 6 months of his presidency. Since January 16, 2021 no further executions have been performed. . . . There are 43 offenders remaining on federal death row. . . .

The most recent person to be executed by the military is U.S. Army Private John A. Bennett, executed on April 13, 1961, for child rape and attempted murder.

The only executions by the federal government committed in states where the death penalty was abolished in the last sixty years were Dustin Lee Honken (Iowa, executed in 2020), Corey Johnson (Virginia, executed in 2021), and Dustin John Higgs (Maryland, executed in 2021). Five other defendants were sentenced to death but died in prison or have not been executed yet, most notoriously the Boston Marathon bomber.

Pro-death penalty conservatives could have used broader federal homicide legislation to expand the death penalty widely into states that have abolished the death penalty, but neither Republican nor Democratic Presidential administrations have chosen to do so, and legislators have not passed budgets or new federal criminal homicide statutes to facilitate this possibility.

He Is Really Proposing A Novel Federalism Based Compromise On Abortion

In this case, Ramaswamy is using this position to advance his political goal of trying to take a national abortion ban off the table of legitimate issues in a national Presidential election because he knows that politically, this proposal would do him more harm than good in a general election, while allowing him to continue to meet a GOP abortion litmus test by supporting abortion bans at the state level in states where there is the political will to pass them.

Equally important, of course, is the fact that this stance provides him with vaguely plausible talking points that help him to strike a somewhat principled compromised between the most extreme anti-abortion advocates in the GOP base (and most of the leading GOP Presidential candidates) on one hand, and independent voters in general elections who are strongly turned off by national abortion ban proposals, on the other.

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  • Wouldn't the implied position of his stance be that abortion clinics could be prosecuted under RICO if they perform abortions on women from outside their state?
    – nick012000
    Commented Jun 11, 2023 at 5:42
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I think this is inevitable in a federal system: it is difficult to imagine a country not having laws that outlaw homicides, including murder. If a group of countries decide to federate, they have two choices: try to negotiate all the homicide laws into one uniform federal code, or leave homicide as a state matter. Generally there are enough other problems for them not to want to run with the first option.

The only other federal system that I know reasonably well is Australia, where each state has it's own laws for crimes against the person, crimes against property, driving, etc.

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