Roberts on the Interstate Commerce Power:

The David Hardy analysis of Judge Robert's answers on the Second Amendment, which Eugene noted, do bode well for Roberts' attitude towards individual rights. However, his answers on the interstate commerce power, which for right to arms advocates is a very important secondary issue (comparable in importance to the Fourth Amendment, in terms of its practical effect on Second Amendment rights) are very disappointing. On Wednesday he characterized Lopez as merely requiring that Congress attach some jurisdictional hook, in order to prohibit the entirely local possession of an object which decades ago might have been sold in Interstate Commerce. This might be called "the herpes theory" of Interstate Commerce; once something crosses state lines, it remains forever after an object of Interstate Commerce. I agree with the federal district judge who wrote:

To say . . . that because something once traveled interstate it remains in interstate commerce after coming to rest in a given state, is sheer sophistry. This Court, at one time, owned a 1932 Ford which was manufactured in Detroit in the year 1931 and transported to the state of Tennessee. It remained in Tennessee thereafter. Now if this car were hijacked today, some sixty years later, is it still in interstate commerce?
United States v. Cortner, 834 F. Supp. 242, 243 (M.D. Tenn. 1993), rev'd sub nom. United States v. Osteen, 30 F.3d 135 (6th Cir. 1994).

Today, Judge Roberts assured Senator Schumer that Congress has the power under the Interstate Commerce clause to ban the intra-state cloning of a toad. Glenn Reynolds and I argue to the contrary, and suggest that such a view destroys Lopez and Morrison. Compared to Justice Rehnquist, Justice Roberts appear to have similar views on the Second Amendment (good), on the Fourth Amendment (bad), and to be a step backwards on Interstate Commerce. Given that the Rehnquist Court's timid steps towards restoring the Interstate Commerce to its textual limits (rather than allowing it to be a power to regulate everything) were only decided by 5-4 votes, the replacement of Rehnquist with Roberts may end any efforts to change Congress's anti-constitutional presumption that it possess limitless powers over every activity in the United States.

Dave Hardy (mail) (www):
I must say that, strangely (at least as to the first) both Roberts and Feinstein seemed quite clueless on the Lopez issue. I say that because Roberts suggested that a quick legislative fix would be to insert a jurisdictional requirement relating to commerce (including mere movement in commerce in the past), and Feinstein seized on that as something Congress could do.

The reason why it is (especially) clueless is that Congress did just that, several years ago. I'd expect Feinstein, at the very least, to remember that she already voted that in.

The paradox with regard Roberts' expressed position is that (while I don't remember offhand whether Congress made the findings in enacting the Endangered Species Act), there were plenty of claims during the floor debates on that statute that "failure to do good" with regard to endangered species affected commerce fully as much as "failure to stop cloning" might. Both were, in fact, based on speculation as to the future ... i.e., we have discovered some useful chemical or medical drug in some obscure plant, and in the future we might find equally useful stuff in other endangered species. That's no more than the converse of "if we don't ban cloning, there might be some results that might affect commerce."
9.16.2005 1:40am
Milhouse (www):
I noticed this on Tuesday, and blogged about it here. I just added an update referencing this post.
9.16.2005 5:11am
Some Jarhead:
I'll be on your record as saying it here, but I've spoken the words numerous times since his first nomination: Judge Roberts is going to screw us, big time.

If nothing else, his Harvard pedigree is the first warning sign. A man who wastes 7 years of his life at an out-of-touch university (a living constitution?) in a backwater state (gay marriage?) is simply not fit to assume a leadership role in America.

Under those circumstances, any reasonably sensible person would have immediately enlisted in the Marine Corps.
9.16.2005 7:32am
Paul doson (mail) (www):
I appreciate the judgement which was delivered. Great source for many people to follow suit.
9.16.2005 8:02am
Jeremy (mail):
I'll caution against taking too seriously anything Judge Roberts says in his confirmation hearings. These hearings are before a Senate Judiciary Committee that utterly destroys anyone dumb enough to be honest and forthright.

As a conservative, I'm neither encouraged nor depressed by anything Judge Roberts has said thus far during the confirmation hearings, because I know it doesn't mean squat.
9.16.2005 9:37am
Sasha Slutsker (www):
Come on Some Jarhead, there's nothing wrong with Harvard. Roberts won't screw us.
9.16.2005 10:11am
Bruce Hayden (mail) (www):
I agree with Jeremy. What I see is a very good lawyer saying not that much. Yes, I am cynical. But you have to be these days. The WSJ article today "The Next Justices" by Manuel Miranda makes obvious that what many of these Democrats on the Judiciary Committee are doing here. It has little if anything to do with Judge Roberts' qualifications, and almost everything to do with their base.

Remember, these are many of the same Democrats who were essentially found to be selling the killing of Republican judicial nominations for campaign contributions (remember those leaked Democratic Justice Committee staffer memos?). Esp. noteworthy were Sens. Kennedy, Durbin, and Schumer in this.

Someone suggested a day or so ago that Sen. Schumer appeared to be seriously considering whether or not he was going to vote for Judge Roberts. Hogwash. These are precisely the Democratic Senators least likely to give Judge Roberts a fair hearing. Their votes have already been sold. Their main purpose here is to give other Democratic Senators cover to oppose Roberts when his nomination goes to a vote on the floor (which they could prevent at the time those memos came out but can't anymore).
9.16.2005 10:48am
WHerndon (mail):
Just wondering, jarhead, have you ever lived in Massachusetts?

I grew up there, and I think I know a bit about the state. If the Bay State is a backwater, everyone else in the nation must be living in caves.

It is true that Massachusetts is run by Democrats, most of whom are liberal. Yet that's largely the fault of a defunct Republican Party that's done little to offer a politically moderate-conservative alternative. There might not be worse-run state Republican Party in the country.

See, Massachusetts may be a liberal "state," but its people are not. Most residents are politically moderate. On social issues, the majority are personally moderate to slightly conservative, but they have a notable libertarian streak. Don't bother me and I won't bother you.

That is why Massachusetts -- for decades a strong Republican state -- has had Republican governors for 15 straight years! (since 1990). There are lots of people in the state, a majority in fact, who don't like higher taxes and such.

Sorry, but as a Bay Stater and a judicial conservative, I feel compelled to offer a somewhat extended defense of my home state against unfair criticism. I'd frankly rather live in Massachusetts than anyone else (and I've lived all over).

If there is a more pragmatic state in the union, I am unaware of it.

By the way, the late Justice Rehnquist and the current Justice Scalia both have a Harvard degree among their titles. Doesnt seem to have hurt them too much.
9.16.2005 10:55am
spencere (mail):
Bush also has a Harvard degree.
9.16.2005 11:17am
Texasyankee (mail):
As a non lawyer, this is something I don't understand. If Congress, under the Commerce Clause, can ban the cloaning of a toad, then why, under the clause, can't it ban the aborting of a fetus?

I didn't follow all the statements, but some seemed to think the Supreme Court was not sufficiently defferential to Congress. Under Roe v Wade, hasn't the court limited the power of Congress?
9.16.2005 11:44am
Independent George (mail):
Bush also has a Harvard degree.

As does our esteemed host.
9.16.2005 11:45am
Seamus (mail):
"This Court, at one time, owned a 1932 Ford which was manufactured in Detroit in the year 1931 and transported to the state of Tennessee. It remained in Tennessee thereafter."

The Court owned a 1932 Ford? I assume, then, that the car was paid for by a check drawn on the U.S. Treasury and had "U.S. Government; For Official Use Only" painted on the sides. If, on the other hand, the judge was just indulging the conceit that he personally constitutes "the Court," someone needs to tell him that that only works when he's referring to himself doing judicial business, and that it isn't even cute when he tries it in other contexts.
9.16.2005 11:56am
Hattio (mail):
Wherndon says:

It is true that Massachusetts is run by Democrats, most of whom are liberal. Yet that's largely the fault of a defunct Republican Party that's done little to offer a politically moderate-conservative alternative. There might not be worse-run state Republican Party in the country.

Have you ever looked at Alaska party politics? I would bet the Republican party here is run much poorly. For the exact opposite reason, too many people wouldn't consider voting Democrat...ever.
9.16.2005 12:30pm
As a non lawyer, this is something I don't understand. If Congress, under the Commerce Clause, can ban the cloaning of a toad, then why, under the clause, can't it ban the aborting of a fetus?

There has never been a Supreme Court decision denying Congress the right to enact abortion legislation on the basis that only States may legislate in this area; and indeed, Congress, by enacting various partial-birth abortion bans and the like, has certainly asserted the power to pass such laws.
9.16.2005 12:54pm
Sigivald (mail):
I'm not sure it's a fair analogy at all, personally.

Congress seems inarguably to have the power to regulate the production of cars, since they are almost always sold in a state beyond their construction, and are not a consumable (and are thus likely to be in commerce, inter- or intra-state, for a very long time, especially as they're mobile, rather than being nigh-immobile capital).

Regulating cloning of animals would presumeably be based on the argument that one is very unlikely to go through the trouble and expense of cloning an animal except as a starting point for... commerce. Which is certain to be, to a large degree, interstate commerce, these days. (So perhaps there'd be an exception for purely intra-state cloning, but one can hardly fault Roberts for not bringing up such things in an interview with generally opening-seeking, hostile Senators. Well, at least, I can't.)

Not the most constrained view of the Commerce Clause possible, but by no means does this position require one so loose as that in Raich.

At least as far as I can tell, but I'm not a lawyer.
9.16.2005 1:37pm
gs (mail):
Volokh proprietors: I won't claim this entry is 'reasoned' and 'substantive', but at least I can try to be 'calm'.

It was once said that Tom Dewey lacked redeeming vices. Also, the more I've learned about Thomas More, the more I wouldn't want to be governed by him.

Consider the photo of Bush and Roberts walking side by side to the press conference, like the outgoing and incoming presidents of a rich boys' fraternity. Or like the emperor and lord high chancellor of Hapsburg America.

Such scattered impressions underlie my niggling, ill-defined unease with John Roberts, but I had no defensibly rational basis for concern until his Commerce quote. I wouldn't say I oppose his appointment, but I'd be a heck of a lot more comfortable if he were subject to term limits.

Incidentally, during a recent election 45% of MA voters favored a ballot initiative to abolish the state income tax. Demographics made Massachusetts a Democratic state; the local Republican party made it a one-party state.
9.16.2005 1:58pm
The photo looks increadibly fake. I know it came from the whitehouse and all, and Im not claiming any conspiracy, but man what an awful photo. Roberts and Bush look flat like two cardboard cut outs. Notice how everything is out of focus except for Roberts and Bush. They look like they have no depth.

That said, I dont see what the imperial gripe is. Looks like two guys walking down a hall. Some people see what they want to see.
9.16.2005 2:50pm
Thorley Winston (mail) (www):

Anyone who comes into a discussion of a judicial nominee's beliefs on the Commerce Clause by throwing around "emperor" and "fraternity house" has nothing of substance to contribute.

Best to ignore the Kossack, lest it derail the discussion.
9.16.2005 3:07pm
David Pittelli (mail) (www):
SCHUMER: Under the commerce clause, can Congress pass a law banning even noncommercial cloning?

ROBERTS: I appreciate it's a hypothetical, and you will as well, so I don't mean to be giving binding opinions. But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce. Obviously if you were successful in cloning an animal, that's not going to be simply a local phenomenon. That's going to be something people are going to...

SCHUMER: We can leave it at that. That's a good answer, as far as I am concerned.

Don't you all think it likely that, if Schumer hadn't interrupted Roberts, Roberts would have added, "Of course, the Supreme Court would then have to decide whether Congress' 'determination' was persuasive"?

I don't think any judge would disagree that the Supreme Court has to play such a role, any more than any judge would either totally reject (or always defer to) stare decisis. What is in question is by what premises and logic such determinations are made. At any rate, what Roberts did say, in addition to being caveated, was about what Congress could do, not whether such a move would stand judicial scrutiny. Certainly it is wrong for Schumer to imply that Roberts agrees with Schumer, or that Schumer has extracted even half a promise from Roberts, but that is, I think, the reason Schumer cut off Roberts and then said "good answer."
9.16.2005 3:33pm
gs (mail):
David Pittelli's comment is somewhat reassuring imho. Unfortunately, no Republican senator gave Roberts an opportunity to complete his interrupted statement.

Liberals were uneasy with Souter, and today he is described as a SCOTUS liberal. Now some libertarians are uneasy with Roberts, and...? Maybe. Maybe not.
9.16.2005 4:22pm
Nobody (mail):
The Cortner court's example is a strikingly bad one; a car, no matter how, old, is a mobile instrumentality of interstate commerce.
9.16.2005 7:05pm
Texasyankee (mail):

My understanding is that Congress did pass a partial birth abortion ban in 2003 but that lower Federal courts have overturned it. The court (in the Ninth Circuit I believe) ruled it was a violation to the right to privacy. So my question still remains: why does Congress have the power under the Commerce Clause to ban toad cloning and medical marijuana but not abortion. Senator Spector said the Supreme Court has upheld Roe v Wade 38 times. Were all these state cases and did none of them involve Federal powers? This leads to a further question: the Commerce Clause is in the text of the Constitution and the right to privacy is an implied right (is that the correct term?). When does an implied right override a clause in the text?
9.16.2005 8:00pm