Topic: Commerce Clause
Senator: Schumer
Date: SEPTEMBER 13, 2005
Contents
SCHUMER: I'd like to go to the third leg of protection now, and probably spend the rest of my time on this, constitutional rights, the commerce clause.
Now, just to briefly encapsulate, you said this: You agree that the Constitution gives the Supreme Court the power to review and invalidate acts of Congress as was held two centuries ago in Marbury v. Madison.
ROBERTS: Yes.
SCHUMER: And you also said in questions I guess with Senator Kennedy that you agree with the court's conclusion that segregation of children in public schools solely on the basis of race was unconstitutional as in Brown.
OK. Well, there's a third case that I'd like to bring up, and it's the third leg of the framework in a lot of ways, and that's Wickard v. Filburn.
Do you agree with the principle that the Congress has the power under the commerce clause to regulate activities that are purely local so long as Congress finds that the activities, quote, "exert a substantial economic effect on interstate commerce"?
In other words, can Congress regulate commerce that doesn't involve an article traveling across state lines?
ROBERTS: Well, that's obviously the court's holding in Wickard against Filburn, and reaffirmed recently to a large extent in the Raich case.
But I would say that because it has come up again so recently in the Raich case, that it's an area where I think it's inappropriate for me to comment on my personal view about whether it's correct or not.
That's unlike an issue under Marbury v. Madison or Brown v. Board of Education, which I don't think is likely to come up again before the court.
This was just before the court last year. And so I should, I think, avoid commenting on whether I think it's correct or not.
SCHUMER: This is not a recent case. This is Wickard v. Filburn. It's from 1942, I guess it was. It's a basic bedrock of our constitutional law.
SCHUMER: Law after law, the civil rights laws of 1982 and '65 that you talked about previously are based on the commerce clause, not necessarily on Wickard...
ROBERTS: No, not on Wickard.
SCHUMER: I understand. But so much of what we do is based on the commerce clause. And you know that there is a movement to greatly cut back on the commerce clause, led by Professor Epstein.
One of the justices that the president said he wanted to appoint more justices like, Justice Thomas doesn't really believe in the holding of Wickard.
And at a time with Hurricane Katrina, in the midst of the war on terror, when we need a strong national government, I find it -- I'm not asking you -- there's been a holding that's been accepted, and it was accepted in Raich as well by just about everybody, with a few exceptions, I mentioned, that says you don't need the article to cross state lines to be regulateable under the commerce clause by the federal government.
That seems to me to be as little in dispute as Griswold, as Brown, in terms of its broad acceptance, in terms of a term that you've used, in terms of the stability of our government.
And I'm really surprised that you are unwilling to simply say -- I'm not asking you for all the variations on the theme, but a fundamental bedrock, which is that Congress can regulate, under the commerce clause things that don't cross state lines is something that is in some doubt.
ROBERTS: Well, Senator...
SCHUMER: You know, you said that -- excuse me -- you said that there would be unanimity just about, or close to it, on issue after issue. Obviously, there are dissents.
I think Learned Hand in 1958 said he didn't agree with Marbury, but you said you had not problems going along with Marbury.
In Brown, I suppose there are still some people who don't believe in Brown here and there.
And here's a bedrock principle, admittedly under attack by what I would call an extreme few, that if we didn't unequivocally back it -- not the variations on the theme, but the fundamental -- the fundamental principle that Congress can regulate if it doesn't actually -- the article doesn't actually cross -- that Congress can regulate manufacturing, because of its dramatic effect on interstate commerce.
And you are unwilling to give Wickard the same status that you give Griswald, which was decided 22 years later or Brown, which was decided 12 years later. I mean, I know that Morrison and Lopez -- but they don't challenge the fundamental precept.
I didn't ask you if you fully support Wickard. I asked you if you support the proposition that under the commerce clause you don't need the actual article crossing the state line. And you're not willing to say that settled law, that that's part of our established way of law.
ROBERTS: Well, Senator, all you have to do is look at the arguments, the briefs in the Raich case, where that was the issue that was argued -- whether or not Wickard v. Filburn was still good law, whether or not Wickard v. Filburn should be applied in that situation.
Nobody in recent years has been arguing whether Marbury v. Madison is good law. Nobody has been arguing whether Brown v. Board of Education is good law.
They have been arguing whether Wickard v. Filburn is good law. Now it was reaffirmed in the Raich case. And that is a precedent of the Court, just like Wickard, that I would apply, like any other precedent. I have no agenda to overturn it. I have no agenda to revisit it. It's a precedent of the court. But I do think it's a bit much to say that it's on the same plane as a precedent as Marbury v. Madison and Brown v. Board of Education.
SCHUMER: Or Griswold?
ROBERTS: Or Griswold.
The fact that it was just reconsidered and reargued last year in the Raich case suggested it's not that same type of case. And that's why I'm uncomfortable commenting on it.
ROBERTS: I have gone farther than many other nominees in talking about cases, like Marbury, like Brown, like Griswold, because I thought it was appropriate, given the fact that those issues are not, in my view, likely to come before the court again.
Here's an issue that was just before the court last year, so I can't say that it's unlikely to come before the court again, and therefore I think it falls in the category of cases which I should tell you I recognize it as a precedent of the court, I have no agenda to overturn it or revisit it, but beyond that I think it's inappropriate to comment.
SCHUMER: Well, I would say that -- well, let's go to a few more commerce case issues. Again, I think Wickard is as accepted -- not Wickard per se, but the idea that crossing state lines is not the only thing that you need for the commerce clause, that you don't have to have the article cross state lines to be able to regulate is a bedrock of law after law after law that the federal government has passed. And your ability to...
ROBERTS: And I'm not expressing...
SCHUMER: I understand.
ROBERTS: I'm not expressing any hostility to the proposition at all. All I'm telling you is that this is a case that was challenged, the application in the Raich case last year, and to say it's in the same category as Marbury or Brown, I think is inaccurate.
SCHUMER: But, sir, Griswold came up in Lawrence; I don't know how many years ago that was. You can make the arguments that even somehow or other somebody challenged precepts that flow from Marbury.
ROBERTS: And so perhaps I should have taken the approach Justice Scalia took. He wouldn't tell this committee whether Marbury was correctly decided.
SCHUMER: Glad you didn't do that.
ROBERTS: And the reward for not doing that is to have additional cases that are very current in terms of the litigation before the court, and the idea as well, you said what you thought about Marbury. What do you think about the Raich case, which just reaffirmed Wickard v. Filburn?
They're two very different parameters. My approach has been a practical one, not an ideological one, but a practical one.
SCHUMER: I'm sorry.
Just explain to me why you can say it about Griswold, which I'm glad that you did, but not about Wickard. Both of them have been litigated -- tangentially, at least -- in the last five or six years.
ROBERTS: Well, Wickard was litigated directly in the Raich case. I don't think that the issue in Griswold is likely to come before the court. It was unlike...
SCHUMER: Isn't Lawrence an outgrowth of Griswold in terms of what the right of privacy is to consenting adults in their bedroom?
ROBERTS: Well, that's one of the issues. But the difference between the issue that was presented in Griswold and its ramifications of the analysis, those are two very different issues.
SCHUMER: OK. Let me ask you just a little more on the commerce clause.
We've all talked about the hapless toad and the fact that the toad didn't cross state lines didn't lead you to reject the Endangered Species Act under the commerce clause but go seek another possibility. So let me give you a couple of hypotheticals.
Let's say we figured out that somebody could make botulism or a lot of people could make botulism -- a deadly, deadly poison. I think it's one of the seven poisons that the FBI looks for, in terms of doing danger to us. But they could make it with materials completely within the state. There was no material that crossed state lines; it's a little bit like the toad.
Would you think that the federal government, if Congress so deigned, would have the ability to regulate that activity?
ROBERTS: Well, I think that sounds a lot like the Raich case, where the court determined the medical marijuana issue even though the regulation of marijuana as an illicit drug, it had interstate impact, even if the medical provision of it did not.
ROBERTS: And so they were willing to look beyond and apply the Wickard case, which they reaffirmed the suitability, and conclude that that had a significant effect on commerce, the regulation in general.
You didn't have to look at the specific regulation. It seemed to me that that hypothetical...
SCHUMER: Would you differentiate that from Viejo?
ROBERTS: Well, in Viejo, you are dealing with a particular species, and the difficulty -- and, again, it was what another court had looked at, not the activity that was regulated, the interference with the species, but the activity that was taking place and having that impact, the building of a housing development.
Other courts, the 5th Circuit in the GDF case, had argued that the approach of looking at the housing development rather than the particular activity was inconsistent with the Supreme Court's decisions.
And what I said is that if there's another basis on which to evaluate it -- and there was, and the panel opinion noted we don't have to reach these other grounds because of our conclusion -- that we should focus on those other alternative grounds and see if we could base and uphold the act on those.
SCHUMER: I understand.
And my time is getting close to the end.
I'm not sure I agree with the large difference between Raich, Viejo and the hypothetical that I gave.
I think the Viejo case and the hypothetical I gave were limited.
But let me just conclude with this.
You know, people wonder what's all the fuss about? And the answer is very simple.
And that is that we could see, if certain viewpoints became majority viewpoints on the Supreme Court, the dismantling of the entire apparatus to protect our rights through the narrowing of the commerce clause, which I said Justice Thomas already agrees should be narrow. And we have a president who may have -- he at least has one more nomination, who said he wants to appoint people in the mold of Thomas.
Not only would the Endangered Species Act go, Title VII would go, OSHA would be gone, the Controlled Substances Act and prohibitions against personal possessions of biological weapons could all be unconstitutional.
Justice Thomas' views on this issue are similar to others. He's against any substantive due process right under the 14th Amendment. He believes that the establishment clause would allow the establishment of state religions -- of religions in the states.
SCHUMER: And so these are serious, serious things. He'd invalidate campaign finance laws, he would eliminate affirmative action.
Now, he's just one justice, but I think it's our job here in the Senate, on both sides of the aisle, if we feel that kind of judicial philosophy, that kind of legal reasoning does not belong in the court, to find out if nominees subscribe to it -- and, if they do, look at them warily.
I'm not saying you do. As I said, some of the things you've said I found pleasantly surprising today. But I do think it's our job, and I think we're going to continue to do it.
SPECTER: Thank you very much, Senator Schumer.
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