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              Congressional                                              ______
            *.Research Service






Congressional Authority to Enact Criminal

Law: Female Genital Mutilation (FGM)



June  21,  2019

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.

Congressional   Authority  to Enact  Criminal  Law
Broadly, it is the states, and not the federal government, that possess primary authority for defining and
enforcing the criminal law. The reason for this is that states have plenary police powers, while the
Constitution establishes a federal government of only limited, enumerated powers. As such, any law
enacted by Congress must be based on one or more of the explicit powers contained in that document.
And the Constitution gives Congress explicit authority to enact criminal law in only certain narrow areas,
related to things like counterfeiting and Piracies and Felonies committed on the high Seas.
Congress accordingly cannot punish felonies generally. That said, the Constitution vests Congress with
broader legislative powers under the Spending, Commerce, and Territorial Clauses (among others), as
well as under the enforcement sections of the Civil War Amendments. Together with its authority to pass
all Laws which shall be necessary and proper for carrying into Execution constitutionally enumerated
powers, Congress can and does use specified powers to enact criminal prohibitions at the federal level.

                                                                Congressional Research Service
                                                                  https://crsreports.congress.gov
                                                                                     LSB10313

CRS Legal Sidebar
Prepared for Members and
Committees of Congress

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