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Congress, the courts and the Commerce Clause

With John Roberts set to replace the Supreme Court's swing vote on federalism, he should be rigorously questioned on the scope of congressional power.

The term "activist judges" is typically hurled by those on the political right who believe that liberal federal judges are legislating social policy from the bench. But they are pointing fingers in the wrong direction. Conservative justices on the U.S. Supreme Court have made the Rehnquist court one of the most "activist" in history. Often by a one-vote margin, the court has repeatedly substituted its own judgment for that of Congress, setting aside federal statutes or making them inapplicable to the states, on the grounds that Congress had overstepped its constitutional authority.

Sen. Arlen Specter, the Republican chairman of the Senate Judiciary Committee and a constitutional scholar, understands that the court's approach to federalism is important because it directly affects Congress' ability to address national problems. With Supreme Court nominee John Roberts Jr. set to replace the court's swing vote on federalism - Justice Sandra Day O'Connor - Specter has informed Roberts in a series of thoughtful letters that he should expect rigorous questioning on the scope of congressional power and whether courts should be second-guessing Congress' legislative intent. Roberts' confirmation hearings are set to begin Sept. 6.

Under Specter's leadership, the committee appears ready to focus on Roberts' interpretation of the Commerce Clause - from which Congress derives most of its regulatory authority. This is the linchpin of the federalism issue, with consequences for everything from environmental protection to civil rights to child labor.

While Roberts, who is a judge on the D.C. Circuit Court of Appeals, has a sparse record on states' rights, he did participate in one case involving the Endangered Species Act and the protection of the arroyo toad. Roberts suggested in a dissent that the law should not protect the "hapless toad" because the species does not live outside California. In other words, Congress does not have the power to regulate on behalf of a species that lives in a single state. If this crimped view of Congress' lawmaking power were to prevail, wholesale areas of federal law could be put at risk. Roberts was also a law clerk for Chief Justice William Rehnquist, who has been the driving force behind the court's federalism revolution.

The high court already has accepted a few cases with states' rights implications for next term, including one involving a disabled inmate and whether he can sue the state of Georgia over prison conditions under the Americans with Disabilities Act. Roberts should not be grilled on these specific matters. But as Specter laid out in his letters, it is reasonable to expect Roberts to fully explore his theory of the Commerce Clause and to what extent the court may put the brakes on Congress' policymaking.

This is the second in a series of editorials on the Roberts nomination.

[Last modified August 29, 2005, 03:00:19]