Supreme Court Nominee John Roberts Visits Lawmakers On Capitol Hill
Chip Somodevilla  /  Getty Images
Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., left, and Senate Majority Leader Bill Frist, R-Tenn., center, at a July 20 get-acquainted meeting with Supreme Court nominee John Roberts.
By Tom Curry National affairs writer
updated 9/12/2005 7:42:46 PM ET 2005-09-12T23:42:46

Senators begin their interrogation of chief justice nominee John Roberts Tuesday morning.

They will pose questions to him on abortion, treatment of al Qaida detainees at Guantanamo, and other headline-grabbing topics.

But if Judiciary Committee chairman Sen. Arlen Specter, R-Pa. has his way, the dominant questions for the hearing will be: How broad are the powers given to Congress by the Constitution?

Does the Constitution give Congress the power to regulate matters solely within states, for instance, to save the life of a toad which lives only within the boundaries of California?

A judge who adopts a stringent reading of the Constitution would say “no, Congress can’t meddle with such things.”

Why? Because the Constitution explicitly gives Congress the power to do only the things specified in Article One — for example, to declare war, to coin money, and to regulate interstate commerce.

Why the Commerce Clause matters
Think that "interstate commerce" only means shipping soybeans from Iowa to Utah? Think again.

The Constitution’s Commerce Clause has been the underpinning for much of the federal government's power ever since Franklin Roosevelt's New Deal 70 years ago. Since the late 1930’s, the justices have broadly read “interstate commerce” to include anything that has a “substantial effect” on interstate commerce.

“The Commerce Clause is what gives Congress its power to pass the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Endangered Species Act,” said David Bookbinder, senior attorney with the Sierra Club in Washington.

“Now people are challenging whether Congress has this authority,” he explained. “Does the Commerce Clause give Congress the power to protect wetlands within a single state? Can Congress protect someone’s aquifer, their drinking water, which lies under the bounds of a single state? Does it have the power to protect grizzly bears that live only in Alaska? It is clear Judge Roberts has questions as to whether Congress has this authority and it’s also clear Sen. Specter wants answers.”

What Roberts has said up until now about the Commerce Clause unsettles those such as Bookbinder who want the federal government to have a powerful regulatory role.

As part of a nine-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, Roberts issued a dissent in a 2003 case called Rancho Viejo LLC v. Norton.

Does Endangered Species Act go too far?
Roberts questioned whether the Constitution gives federal regulators the power under the Endangered Species Act to stop a housing development that might affect the survival of a species of toad which lives solely within the boundaries of California.

Roberts wanted another hearing of the case so that all of his District of Columbia Circuit colleagues could at least consider how the Endangered Species Act might be limited by a strict reading of the Commerce Clause.

He cited two decisions written by Chief Justice William Rehnquist , United States v. Lopez in 1995 and United States v Morrison in 2000, which limited the reach of the Commerce Clause.

The Lopez decision struck down the Gun Free School Zones Act of 1990 and Morrison eviscerated a section of the 1994 Violence against Women Act which gave women the right to file civil suits against their alleged attackers, if the motive for the crime was hatred of women.

In those two decisions, Rehnquist said Congress had no factual basis for assuming that carrying a gun near a school and attacking women were economic activities and had an effect on interstate commerce.

A question of federal power
The Commerce Clause did not provide for unlimited federal power, or as Rehnquist said, “The Constitution requires a distinction between what is truly national and what is truly local.”

In a letter to Roberts on Aug. 9, Specter told Roberts, “Members of Congress are irate about the Court’s denigrating and really disrespectful statements about Congress’s competence” in the Lopez and Morrison decisions.

Specter made it clear the Commerce Clause and the Lopez and Morrison decisions will be central to his grilling of the nominee.

Specter’s questions on the two decisions will put Roberts on the spot: disavow two landmark rulings written by his old mentor, Rehnquist, or risk alienating a key senator whose vote Roberts may need to win confirmation.

Why Roberts dissented
Prof. Brannon Denning, an expert on the Commerce Clause at Samford University’s Cumberland School of Law, said that while he can’t predict how Roberts would decide Commerce Clause cases if he is confirmed, “My guess is that he would not take Justice Thomas's line that we should go back to first principles to figure out what the Framers and ratifiers of the Constitution would have intended for ‘commerce’ to encompass and give Congress power over just that.”

The justices most recently addressed the issue in their June 6 Gonzales v. Raich decision. They ruled that Congress’ Commerce Clause authority, which underpins federal drug laws, includes the power to prohibit the use of marijuana for medicinal purposes, even though California law permits such use.

“As a practical matter, the Raich decision means the end of judicially-enforced limits to the Commerce Clause for now,” said Denning.

But Bookbinder sees it differently: “It’s an unfolding saga — the Oregon death with dignity (physician-assisted suicide) case (in which the Supreme Court will hear arguments in just three weeks) and after that, there will be no end of end of Commerce Clause cases. The justices let the genie out of the bottle with the Lopez decision, these cases have been pouring into federal courts and they will continue until there is some ultimate resolution.”

Dissenting in the California marijuana case, Thomas said, “If the majority (opinion) is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States. This makes a mockery of Madison’s assurance… that the ‘powers delegated’ to the Federal Government are ‘few and defined’….”

Specter will use this week’s hearings to try to figure out whether nominee Roberts agrees with James Madison and Clarence Thomas — or whether he takes a more expansive view of the powers of the Congress under the Commerce Clause.

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