Topic: Commerce Clasue
Date: SEPTEMBER 15, 2005
SCHUMER: Let me, if I might -- I want to go back to the commerce clause which bothers me, as you know.
Again, apart from anybody's view, do you agree 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 exert a substantial economic effect on interstate commerce?
ROBERTS: If the question -- and this is where the issue comes up -- is whether or not the court has addressed it, the activities are commercial. If the activities are commercial in nature, you get to aggregate them under Wickard against Filburn that we've talked about; you don't have to look at just that particular activity, you'd look at the activity in general.
Where the dispute and issue has come in is whether the activities are commercial. That's where the disagreement -- or the point I was trying to make in the infamous or famous toad case. If you should look at this as commercial activity, then you can...
SCHUMER: Do you believe Congress deserves a great deal-- this is in reference to some of the things Senator Specter talked about -- that Congress deserves a great deal of deference when it decides something is commercial and has finding to that effect?
ROBERTS: I do, Senator. And I think that is the basic theme that runs through the court's commerce clause jurisprudence.
There is, again, of course, the Lopez and Morrison decisions. But there's also the Raich decision. And again, I think it's very important -- and what the Raich decision said you've got to consider Lopez and Morrison in the context of this broad sweep, not just as sort of the only decisions.
SCHUMER: OK. Let me ask you, then, this hypothetical: And that is that it came to our attention, Congress', through a relatively and inexpensive, simple process, individuals were now able to clone certain species of animals, maybe an arroyo toad. Didn't pass over state lines; you could somehow do it without doing any of that.
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 bindings 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.