Court declines House Democrats' motion to intervene in genital mutilation case

Melissa Nann Burke
The Detroit News

Washington — A federal court has denied House Democrats' request to intervene in the appeal of a Michigan criminal case to defend the constitutionality of the federal law prohibiting female genital mutilation. 

House Democratic leaders over the summer had asked the U.S Circuit Court of Appeals for the 6th Circuit to let them take up the 1996 law's defense after the Department of Justice declined to appeal a ruling invalidating the law as unconstitutional last year. 

At the time, House Speaker Nancy Pelosi said 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.’’

Late Friday, the 6th Circuit denied the request to intervene and granted a motion by the parties to voluntarily dismiss the appeal. 

Nancy Pelosi

A Pelosi spokesman said Friday the House was reviewing its options. The prosecution was the first of its kind nationwide under the 1996 law. 

Peter Henning, a former federal prosecutor who now teaches law at Wayne State University, said the court denying the House’s motion to intervene was not a surprise.

“This was a long shot from the beginning because the Justice Department is responsible for criminal prosecutions, not the House of Representatives,” Henning said.

“Congress does not have prosecutorial authority.”

The case involves a team of Metro Detroit doctors accused of mutilating the genitalia of nine girls at a Livonia clinic since 2015.

U.S. District Judge Bernard Friedman in November dismissed the genital mutilation charges against the doctors as unconstitutional on the grounds that the statute at issue lacked a connection to interstate commerce.

Federal prosecutors initially filed a notice of appeal, but Solicitor General Noel Francisco earlier this year determined his department "lacks a reasonable defense" of the statute's constitutionality in light of Friedman's ruling. 

Francisco shared his decision to abandon the appeal with Congress in a letter condemning FGM as "an especially heinous practice" and urging lawmakers to amend the law to ensure it could pass constitutional muster in the future. His staff provided a detailed legislative proposal to Judiciary committee leaders in both chambers. 

House leaders — after a 3-2 party-line vote of its Bipartisan Legal Advisory Group — filed the motion to intervene soon after in April, which the government and the defendants opposed.

The Department of Justice argued that only the executive branch has prosecutorial power, and that no law or procedural rules authorize the Congress to intervene in a criminal case. 

"Given the broad condemnation of this abhorrent practice, it is inexplicable that the House has not acted on the department's (legislative) proposal," DOJ attorneys wrote in a brief the following month. 

"If the defendants in this case are to go to prison it should not be at the behest of three members of the House's Bipartisan Legal Advisory Group."

Lawyers involved in the motion on both sides said it was the first time the House of Representatives has attempted to intervene in a pending criminal case to defend a statute after federal prosecutors declined to do so on appeal.

Previously, the House has intervened only in civil cases in order to defend statutes such as the Affordable Care Act or the Defense of Marriage Act, when the Department of Justice declined not to pursue appeals. 

Attorneys for House Democrats argued that the chamber has a "unique interest in defending its own enactments against judicial invalidation when the executive branch has abandoned its defense of those enactments." 

"In this instance, intervention by the House is warranted because reasonable arguments can be made in defense of" the statute, the attorneys continued. 

"The House's participation in this suit will thus materially aid this court in determining whether the FGM statute can survive constitutional scrutiny, and thereby serve as a basis for the defendants' prosecution in court." 

The House stressed that female genital mutilation is a "serious" public health problem in the U.S. internationally, citing figures from the Centers for Disease Control and Prevention estimating that more than 500,000 women and girls are either victims or at risk of being victims of the procedure in the United States.