Abigail Spanberger’s Willingness to Exceed Limits of Her Constitutional Authority

Abigail Spanberger, formerly House Representative (D-VA 7) and currently Democratic Party candidate for Virginia Governor, has shown a willingness to exceed the limits of her constitutional authority. I ask the reader to bear with me as I explain the basis for making such a serious claim because my reasoning cannot be reduced to a few sentences. 

On July 15, 2022, the House of Representatives passed H.R. 8296 (“Women’s Health Protection Act of 2022″). The vote in favor of the bill was 219 (all Democrats), the vote opposed was 210 (209 Republicans and 1 Democrat). The text of H.R. 8296 and the voting on it are available at https://www.congress.gov/bill/117th-congress/house-bill/8296 . Then Representative Abigail Spanberger voted in favor of H.R. 8296. 

In a previous article, I discussed how Democrats misrepresented H.R. 8296 by claiming it was “to codify Roe v. Wade.” See “Abigail Spanberger’s Roe v. Wade Misrepresentation,” posted on The Bull Elephant on September 3, 2025. There is another aspect of H.R. 8296 that raises serious questions about the willingness of the Congressional Democrats (including then Representative Abigail Spanberger) to exceed the limits of their constitutional authority. 

Apart from the failure of H.R. 8296 to follow the Supreme Court’s specific acknowledgment (in Roe v. Wade) of various legitimate interests that States have in regulating abortion after viability, H.R. 8296 also included language that (1) sought to infringe on the constitutional authority of federal courts (U.S. Constitution, Article III); and (2) sought to deny States the right to claim any protection under the Tenth Amendment and the Eleventh Amendment of the U.S. Constitution or any other source of law that might confer State immunity from litigation under H.R. 8296. 

Infringing on constitutional authority of federal courts. U.S. Constitution, Article III, Section 1 states “The judicial Power of the United States, shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish.”  Nothing in the Constitution authorizes Congress to exercise the judicial power vested in the federal courts or to legislatively infringe on the constitutional power of the federal courts. 

In H.R. 8296, Section 2 (“Findings and Purpose”), the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (June 24, 2022) is criticized and the dissent is embraced as the correct decision that should have been made. Furthermore, the substantive provisions of H.R. 8296 — if enacted into law — would have had the practical effect of overruling, suspending or nullifying the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization. However strongly Congress might disagree with a Supreme Court majority decision, it has no constitutional authority to legislatively seek to overrule that majority decision, embody the gist of the dissenting opinion into federal statutory law, and require federal courts to follow that statutory law even though it seeks to elevate a Supreme Court dissent over a Supreme Court majority decision. Simply put, Congress has no constitutional authority to legislatively reverse, overrule, suspend, or nullify a Supreme Court decision, or declare a dissent to be the law of the case. Moreover, Congress cannot legislatively command federal courts to disregard or fail to apply a pertinent Supreme Court decision. The authority to reconsider, modify, limit, or overrule a decision of the Supreme Court is the responsibility of the Supreme Court under the Article III judicial power and that authority cannot be exercised or infringed by Congress. 

By voting in favor of H.R. 8296, then-Representative Abigail Spanberger voted in favor of legislatively infringing on the federal judicial power and usurping it by legislative fiat, contrary to U.S. Constitution, Article III. 

Abrogation of Immunity Claims Under the Tenth and Eleventh Amendments of U.S. Constitution. H.R. 8296, Section 8(f) bars any defendant in a civil litigation arising under H.R. 8296 from raising any claim of immunity based on the Tenth and Eleventh Amendments to the U.S. Constitution or any other law. 

Nothing in the U.S. Constitution authorizes any branch of the federal government (legislative, executive, or judicial) to suspend, nullify, or restrict the application of any provision of the U.S. Constitution. Nothing in U.S. Constitution gives Congress authority to unilaterally deny the States the right to raise in litigation claims under the Tenth and Eleventh Amendments, or any other applicable provision of the U.S. Constitution. Relevant provisions of the U.S. Constitution can be invoked by States, organizations, and individuals in litigation without them having to seek permission from Congress or suffering interference from Congress. The federal courts have judicial authority under U.S. Constitution, Article III to decide cases and consider and rule on constitutional claims raised by the parties regardless of any claim by Congress to dictate otherwise. Nothing in the U.S. Constitution gives Congress authority to dictate to federal courts that they must not consider any constitutional claims that Congress declares should not be available in litigation arising under a federal statute. Although Congress can propose amendments to the U.S. Constitution, any such proposed changes must be ratified under the terms of U.S. Constitution, Article V, not by unilateral Congressional legislative fiat. 

The language in H.S. 8296 aimed at legislatively impairing the ability of States and state and local government officials to raise constitutional claims under the Tenth and Eleventh Amendments poses a threat that extends beyond the States and state and local government officials. Why? Because once Congress enacts a statute that seeks to limit, restrict, suspend, or nullify a provision of the U.S. Constitution, it will have crossed a constitutional Rubicon. If Congress claims to have the authority to legislatively deny States and state and local government officials the ability to raise claims under the Tenth and Eleventh Amendments, there is nothing to stop Congress if it decides to legislatively limit, restrict, or prohibit constitutional claims under any other provision of the U.S. Constitution. The rationale underlying the Congressional Democrats’ 2022 attempt to nullify or suspend the ability of States to raise claims under the Tenth and Eleventh Amendment can easily be extended and applied to future legislation that nullifies or suspends the rights of non-governmental persons and organizations arising under other provisions of the U.S. Constitution.

The vote of all but one Democratic House Member to pass H.R. 8296 was a flagrant and unabashed declaration of Congressional supremacy over provisions of the U.S. Constitution that might stand in the way of what the Congressional Democrats wanted to enact into federal law.  (As noted earlier, no House Republican voted for H.R. 8296.) The Congressional Democrats voting for H.R. 8296 betrayed their oath of office to support the Constitution (U.S. Constitution, Article VI, Clause 3) and presumed that their Article I legislative power allows them to disregard or supersede provisions of the Constitution. 

H.R. 8296 was a sinister Trojan Horse that (a) invoked the Roe v. Wade decision in name only; (b) was incompatible with key passages in the Roe v. Wade decision, and (c) was an unabashed declaration of Congressional supremacy over the U.S. Constitution. Members of Congress are bound by the U.S. Constitution, and any laws they seek to enact cannot be incompatible with the Constitution or presume to override or control the Constitution by Congressional fiat. 

Since then-Representative Abigail Spanberger was willing to vote in 2022 in favor of H.R. 8296, why should Virginians have any confidence in 2025 that Abigail Spanberger would not be willing, if elected governor, to support and sign into law statutes that would similarly purport to (a) supersede provisions of the Virginia Constitution, or (b) limit, restrict, or bar Virginians from asserting and claiming their rights under the Virginia Constitution? 

Virginians should ask candidate Abigail Spanberger to answer the following questions: 

(1) What was her justification for voting for H.R. 8296 when that bill contained provisions that sought to infringe on the judicial power of the federal courts, and suspend or nullify the right of States to raise defenses under the Tenth and Eleventh Amendments of the U.S. Constitution? 

(2) Why did she believe that public service is compatible with voting for legislation that seeks to ignore, suspend or nullify provisions of the U.S. Constitution? 

(3) Does she still believe that public service is compatible with seeking to enact legislation to suspend or nullify provisions of the U.S. Constitution? 

(4) If elected Governor of Virginia, would she actively and vigorously oppose passage of any proposed legislation, and veto any legislation passed by the General Assembly, that would seek to (a) supersede provisions of the Virginia Constitution, or (b) impose a similar restriction, denial, or nullification of any Virginian’s rights under the Virginia Constitution? 

Virginians should reject (a) any failure by Abigail Spanberger to answer those questions, or (b) any failure by Abigail Spanberger to provide clear, unambiguous, responsive, and non evasive answers to those questions. Any silence or equivocation about her position on respecting and protecting constitutional rights would raise serious doubts about Abigail Spanberger’s fitness to be elected Governor.