Topic: Interpreting Congressional Authority to Enact Laws Under the Commerce
Clause? ]
Senator: Feinstein
Date: SEPTEMBER 13, 2005
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FEINSTEIN: I would like to move to another subject because my time is moving on. And that's what's been happening in the court in the last 10 years.
As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause.
FEINSTEIN: Yet, in the last decade, the court's reinterpretation of the commerce clause has been used to strike down more than three dozen cases.
The court's future decisions will determine whether the Congress will be able to take necessary action to stop child pornography, combat violent crime, ensure child support payments, prevent discrimination, improve our schools and protect our environment.
My question is, do you agree with the direction in which the Supreme Court has moved in more narrowly interpreting congressional authority to enact laws under the commerce clause?
ROBERTS: Well, of course, I've tried to avoid saying whether I agree or disagree with particular cases, but I would point out in this area in particular, I think it's very important to look at the most recent case, which is the Raich case, the medical marijuana case, because the argument was that these two decisions that you are talking about, that were the first in the 60 years, Lopez and Morrison, the argument there was based on Lopez and Morrison -- Congress lacks the power in this area.
And what the Supreme Court said in the Raich case, which I think is very important, it said there are a lot more precedents on the commerce clause besides Lopez and Morrison.
And the appropriate way to regard those is two decisions in more than 200-year sweep of decisions in which the Supreme Court has given extremely broad -- has recognized extremely broad authority on Congress's part, going all the way back to Gibbons v. Ogden and Chief Justice John Marshall when those commerce clause decisions were important in binding the nation together as a single commercial unit.
So, again, without commenting on whether particular decisions are correct or not, I do think it's important to recognize that the court itself in its most recent decision has said, you need to focus on the broad sweep and not just on those two decisions.
FEINSTEIN: Let me move to the case of the hapless toad, known more commonly as Rancho Viejo v. Norton. Do you believe there's a basis for sustaining the Endangered Species Act other than the commerce clause?
ROBERTS: Well, the opinion I wrote there noted that the panel decision that I thought should be reheard en banc looked at one ground under the commerce clause, and the concluding paragraph in my opinion said that we ought to rehear the case to look at other grounds that were also under the commerce clause, but they were not the particular prong of the commerce clause analysis that the panel opinion had relied on.
ROBERTS: And the reason was that, as I explained in the opinion, another circuit court had suggested pointedly that the approach in the panel opinion was inconsistent with the Supreme Court.
And I thought, if there was another basis for sustaining the Endangered Species Act that was not inconsistent in the view of another circuit court, that we ought to look at that and try to do it.
It really reflects a restrained and minimalist approach. If there's a ground that doesn't cause another circuit court to say, you're violating the Supreme Court precedent, we ought to look at that and see if we can...
FEINSTEIN: But the point I'm trying to get at is you're saying that the fact that the toad was almost only found in California means that it was an impermissible use of the Endangered Species Act.
Well, then that raises the question, what if the toad strays across the border, or what if the toad is the last remaining toad?
ROBERTS: Right.
But the one point I would emphasize is my opinion did not conclude that there was no authority under the commerce clause in just that situation.
There was another dissenting opinion that was filed by another judge who said, this violates the commerce clause. I did not join that opinion.
I wrote separately to say that we should hear this en banc with all of the judges, because there are other ways of sustaining this act that don't implicate the concern that has caused the other circuit to question our approach, that had caused the dissenting judge to conclude there was no authority.
And I thought we ought to look at those other grounds, because if we could sustain it without implicating that objection, that would be better all around.
I did not take the position that it was outside the scope of the commerce clause. It was a question of which ground under the commerce clause we ought to look at.
FEINSTEIN: There's a great deal of concern as to what this then means for the implication for all environmental law, the Clean Water Act, the Clean Air Act.
But if I understand you correctly, what you are saying is that you do not believe that the commerce clause should prohibit legislation in this area, is that correct?
ROBERTS: I have not had occasion to decide that.
I did not decide it in the Rancho Viejo case.
ROBERTS: One of the other judges did, and I did not join that opinion. What I said is: We should consider these other grounds.
Now, I didn't have the opportunity, because it was a dissent, from rehearing to consider those other grounds. Those other grounds were what other courts, the 5th Circuit in the GDF case, had used to sustain application of the Endangered Species Act in the cases that came before them.
They didn't get into the question of whether you look at the regulated activity, the building or the actually what was prohibited, the taking of the toad; they analyzed the protection of the endangered species as implicating a commercial activity.
And that allowed them to sustain the act without regard to whether it had an interstate effect itself.
FEINSTEIN: Thank you very much.
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