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Roberts faces new challenge: a clause

It's "the everything clause" of the Constitution. And how this high court nominee interprets it has sparked a controversy.

By BILL ADAIR
Published August 2, 2005

WASHINGTON - Much of the debate about Supreme Court nominee John G. Roberts Jr. has focused on his views about abortion, but a controversy is brewing about his interpretation of a sentence in the Constitution dubbed "the everything clause."

Known more formally as the Commerce Clause, it's been used to justify countless federal laws covering everything from civil rights to endangered species.

For many conservatives, the clause has long been a sore point. They believe Congress and the courts have interpreted it too broadly, leading to sweeping federal regulations that the Founding Fathers never intended.

Democrats and liberal groups say Roberts' opinion in a quirky case involving California toads suggests he sides with the conservatives, has a narrow view of the clause and would strike down many federal laws.

"That theory could substantially cut back Congress' power," said Elliot Mincberg, vice president and legal director of the liberal group People for the American Way. "It could mean significantly limiting the ability of Congress to pass laws protecting civil rights, safety and the environment - and throwing out laws that already do that."

Some Roberts supporters disagree and say his comments in the toad case might simply reflect his discipline following Supreme Court precedents. But other supporters say they hope he has a narrow interpretation because they believe the federal government, with the blessing of the Supreme Court, has used the clause to regulate too much.

"I think Congress has gone ape and out of control," said Sen. Trent Lott, R-Miss. "I would hope the Supreme Court would rule on the Commerce Clause very narrowly."

The impact of wheat

When the Founding Fathers wrote the Constitution, they were more worried about trade than toads.

States were charging tariffs on goods from outside their borders, stifling interstate trade. The authors of the Constitution wanted to eliminate the trade barriers.

The Commerce Clause was born. It said Congress could "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

"The main meaning was to remove impediments," said Gary Galles, an economics professor at Pepperdine University.

The Founding Fathers had no idea the clause might someday be used to justify federal regulations.

"The federal government they were planning was so limited that nobody worried that the federal government would tell everybody what to do," Galles said.

But a series of Supreme Court decisions in the 1800s and 1900s dramatically broadened the interpretation of the clause. The justices said the clause gave Congress authority to regulate meatpacking, child labor, racial discrimination and many other areas because they all had some connection with interstate commerce.

The definition of interstate commerce was stretched to extremes.

In one famous 1942 case, the court said Congress could hold farmers to a wheat quota even if it was grown and consumed on the same farm. The court said the wheat still could have "a substantial economic effect on interstate commerce."

Both political parties have used the clause to justify dozens of federal laws.

"The whole foundation of federal regulation since the early 1900s has been on the basis of the Commerce Clause," said Sen. Charles Schumer, D-N.Y.

But some conservatives bristle at the broad interpretation of a sentence that originally had a narrow purpose. They say that the courts should not grant such sweeping authority and that if Congress wants more power to regulate, it should pass a constitutional amendment.

"I believe the Founding Fathers would be shocked at the use of the Commerce Clause to address partial-birth abortion, Terri Schiavo, the Violence Against Women Act" and many other issues, said Bruce Fein, a constitutional lawyer.

The "hapless toad'

A few years ago, Rancho Viejo, a real estate developer, wanted to build a 202-acre housing development in San Diego. But the homes happened to be in the middle of a habitat for the arroyo southwestern toad, an endangered species known for wandering long distances after mating season.

The U.S. Fish and Wildlife Service determined that the development would "jeopardize the continued existence" of the toad, largely because a fence built by Rancho Viejo kept the toads from traveling to their breeding grounds. But the developer refused to remove the fence and challenged the law, saying the government had exceeded federal powers under the Commerce Clause.

A three-judge panel on the District of Columbia Circuit Court of Appeals said the government had the right to protect the toad even though there appeared to be a weak case for interstate commerce: The animal was not found outside California, and Rancho Viejo's development is entirely within the state. The judges cited previous court decisions that broadly interpreted the Commerce Clause, noting that the homes would rely on materials and construction workers from outside the state.

Rancho Viejo appealed, asking for a rehearing before all nine judges in the D.C. Circuit, but the judges voted 7-2 to deny the motion.

Roberts was one of the two dissenters. He wrote that the refusal to take a second look at the case "seems inconsistent" with two Supreme Court decisions in 1995 and 2000 on the Commerce Clause. Those rulings struck down federal laws to protect women from violence and keep schools free of guns because there was no direct link with interstate commerce.

Roberts said his fellow appellate judges were saying their decision was justified by the Commerce Clause, which applies to interstate commerce, even though the "the hapless toad" was found only in California.

What was he thinking?

Roberts has not spoken publicly since he was nominated, so legal analysts looking for clues into his beliefs must rely on his judicial rulings (he's been a judge for only two years) and memos and letters from his jobs in the Reagan administration (1981-86) and the first Bush administration (1989-93).

So far, the toad case offers the only significant clue about his feelings on the Commerce Clause. But his opinion is only four paragraphs long.

So does Roberts believe the Commerce Clause has been used too broadly? Or is he just following precedents?

David Bookbinder, a senior attorney at the Sierra Club, said the opinion indicates Roberts was "reaching out to create a constitutional issue where most people would not see one."

Mincberg of People for the American Way said: "We can't say for sure because it was one opinion in one case. But what's troubling about his comment about the hapless toad living its life in one state seems to support the theory" that Roberts wants a narrow interpretation of the clause.

Fein, who worked with Roberts in the Reagan administration, said the toad opinion reflects Roberts' approach to rely strictly on the text of the laws and the Constitution.

"John takes the view that you look at the words and the purpose of the particular clause and you apply it to the facts of the case at hand," Fein said.

"He doesn't say he is unhappy because he thinks the federal government is a leviathan and it's stupid what they are doing. The reason he's unhappy is because we are adding embellishments to the Constitution that aren't there."

[Last modified August 2, 2005, 03:00:22]