Deference to Congress

by Henry on November 2, 2005

Norm Ornstein, who sometimes seems to be the AEI’s sole remaining scrap of credibility, has an op-ed in Roll Call today on the Alito nomination. The original version is behind Roll Call’s paywall, but Steve Clemons has the relevant extracts.

To borrow and adapt a phrase, I know John Roberts; John Roberts is a friend (all right, an acquaintance) of mine. And Sam Alito is no John Roberts.

What is the difference? Roberts respects Congress and its constitutional primacy; Alito shows serious signs that he does not. Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.

Congress had passed the law in a reasonable and deliberate fashion. A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn, arguing that the possession of machine guns by private individuals had no economic activity associated with it, and that no real evidence existed that private possession of guns increased crime in a way that affected commerce—and thus Congress had no right to regulate it. That kind of judicial reasoning often is referred to as reflecting the “Constitution in Exile.”

Whatever it is, it’s not judicial restraint.

… Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like. The smart ones find some rationale for overturning laws they don’t like, preserving a patina of consistency, but not more than that. (A few, including Clarence Thomas, don’t even pay lip service to the principle when voting to overturn legislative acts.)

Now Ornstein’s writing from the perspective of a Congress scholar who wants to preserve Congress’s role and prerogatives. But he has a very serious point. If Alito has aligned himself, as he seems to have, with a highly restrictive view of Congress’s powers to regulate interstate commerce, he’s bad news for the left.

Update: the complete column is here (thanks to schwa in comments).

{ 48 comments }

1

Jaybird 11.02.05 at 12:22 pm

Imagine a Republican majority in congress for 40 more years.

Imagine a Republican majority in the Senate for 30 more years.

Imagine a Republican in the White House for 20 more years.

Do you still see a “highly restrictive view of Congress’s powers to regulate interstate commerce” as a bad thing?

2

tim 11.02.05 at 12:32 pm

highly restrictive view of Congress’s powers to regulate interstate commerce

By this do you mean “an insistence that the regulated activity be both interstate and commercial.”

Perhaps the question should be turned around: what kind of activity do you think fails to be covered under the interstate commerce clause?

Or do you take a more pragmatic view: that “interstate commerce” means just what you choose it to mean — neither more nor less.

3

Rich Puchalsky 11.02.05 at 12:36 pm

With all due respect, Henry, any sentence that begins with “If Alito” and ends with “he’s bad news for the left” has something wrong with it. Of course he’s bad news for the left; that’s a given. He’s a Bush-appointed conservative.

And jaybird’s comment really doesn’t make sense. There is no such thing as conservative sincerely held philosophy about constitutional issues. There is only partisanship. A conservative judge will not restrain a Republican Congress or a Republican President, no matter what the proposal. That’s what conservative *means* in current parlance.

4

lemuel pitkin 11.02.05 at 12:47 pm

It continues to amaze me that so many liberals, like jaybird above, have internalized the right’s attacks on them as an elite minority, and have convinced themselves that progressive ideas will never win majority support and can only be defended by unaccountable, appointed legal experts.

If I thought the way you do, jaybird, I’d give up on politics and find a different hobby.

5

dipnut 11.02.05 at 1:31 pm

(grin)

6

schwa 11.02.05 at 1:36 pm

The whole column is here, as are all Ornstein’s Roll Call columns.

7

Slocum 11.02.05 at 1:49 pm

If Alito has aligned himself, as he seems to have, with a highly restrictive view of Congress’s powers to regulate interstate commerce, he’s bad news for the left.

I think that’s wrong. We’ve recently had a prominent case (Raich v Ashcroft) where an absurdly expansive interpretation of the commerce clause was used allow the feds to overrule liberal state medical marijuana laws.

If recent decades are any indication, we need to worry more about liberal states being protected from the conservative feds than the other way around.

8

carter 11.02.05 at 1:49 pm

jaybird – What is your point? The interstate commerce clause is intended to ensure that the public interest is served when enterprises’ activities spill over state boundaries. Since machine guns are made in a specific locality & sold & distributed nationally, how does the interstate commerce clause not apply?

9

Steve LaBonne 11.02.05 at 1:51 pm

I’m with Lemuel. Reality is, this guy is going to be confirmed. Another reality is, this guy’s “bad news for the left” opinions are in many cases quite unpopular. Instead of stupid grandstanding, Democrats should use the confirmation hearing as a golden opportunity for some concentrated voter education on the true nature of contemporary conservatism. Show people exactly what they’re really voting for if they continue to vote Republican- if you do it right, many will be unpleasantly surprised. Of course, since it’s the congressional Democrats we’re talking about here, I’m not actually expecting anything like that to happen…

10

carter 11.02.05 at 1:59 pm

slocum: If recent decades are any indication, we need to worry more about liberal states being protected from the conservative feds than the other way around.

This is rather narrow thinking, my friend. Without application of the interstate commerce clause (icc), corporations would run amok. It was use of the icc that enabled the Feds to regulate hazard conditions in the workplace, child labor laws, minimum wages, environmental hazards etc. etc. States tend to be much more conservative, because of corporate power at the state level, & their activities hidden from public view, than the Fed govt. Sure, sometimes progressives are better served if Fed involvement is not forthcoming & things remain at the Fed level. But this is the exception rather than the rule.

11

Jaybird 11.02.05 at 2:09 pm

My point is that limited government power is a very, very good thing when the Republicans are in power.

And if that means that government power is limited when the Democrats finally get elected, that’s a price I’m willing to pay.

12

Sebastian Holsclaw 11.02.05 at 2:24 pm

Don’t most of the corporations that one might worry about ‘running amok’ actually engage in interstate commerce?

13

PersonFromPorlock 11.02.05 at 2:33 pm

I, too, would like to know where the current interpretation of the Commerce Clause stops. Can the federal government require that I call a plumber rather than install my own faucet, for instance, because the plumber will burn gas in driving to my house and therefore my calling him (or not calling him) affects interstate commerce in gasoline?

I agree the question is ludicrous, but is it unrealistic given a sufficiently influential plumbers’ lobby? Alito’s concern that abuse of the Commerce Clause may be the death of limited government is neither nonsensical nor limited to the hard Right.

14

carter 11.02.05 at 2:34 pm

sebastian: Don’t most of the corporations that one might worry about ‘running amok’ actually engage in interstate commerce?

That’s my point. If conservative judges continue to restrict the application of the icc, they make it impossible to regulate bad corporate behavior.

15

carter 11.02.05 at 2:40 pm

PersonFromPorlock – You’re being paranoid here. The ICC has been overwhelmingly used to regulate large entities whose actions are extremely detrimental to us citizens.

Why don’t you give me 3 historical examples where Congress have passed laws, based on icc powers & upheld by the courts, that parallel the plumbing example you gave.

16

Jaybird 11.02.05 at 2:42 pm

Does Wickard count?

17

Jacob T. Levy 11.02.05 at 3:34 pm

Since machine guns are made in a specific locality & sold & distributed nationally, how does the interstate commerce clause not apply?

Because, just as was the case in Raich, the case before Alito was about private possession and not about production, sale, or distribution. The fact that a given item is sometimes an object of interstate commerce does not mean that every activity related to that object comes within the purview of the interstate commerce clause.

Moreover, Alito didn’t say that it could not be the case that private possession of machine guns might have a regulatable impact on interstate commerce. He said that there had to be some evidence of this, more than the mere Congressional declaration that it was exercising the interstate commerce power.

It seems to me that
Too many judges, including some of the brightest, talk a good game of judicial restraint, but somehow find that deference is due Congress only when it passes laws they like.

is an unsupported smear. Do we have any reason to think that Alito likes private possession of machine guns? The only sense in which this wasn’t a law he “liked” was that it wasn’t a law that he could square with the reading of the commerce clause in US v Lopez.

One of the many weird things about the “Constituion in Exile” meme and the interstate commerce debate is that there seems to be so little willingness on the Rosen-Ornstein side to describe what the interstate commerce clause means on their theory. There could be a principled debate between a more-constrained reading and a less-constrained one where the latter doesn’t collapse into Wickard anything-goes silliness. But there hasn’t ben one; the closest thing we’ve gotten to a defense of a moderately-constrained interstate commerce clause was Scalia’s concurrence in Raich.

Here, again, we’re getting people pointing at Alito and saying, “look, look, he must be crazy, he doesn’t think X can be banned” without any discussion of how an interstate commerce clause that allows federal regulation of X can be prevented from being a plenary grant of legislative authority that makes a joke out of the enumeration of powers in Article I Section 8. “Defer to Congress” isn’t an answer: hypothesizing a Congress that took its constiutional obligations seriously, what standard should it use to decide whether an activity qualified as interstate commerce? And, in any event, uncritical deference to the body that’s deciding the scope of its own constiutional authority is unavailable unless one is going to go the Waldron route and abandon American-style judicial review.

18

Jacob T. Levy 11.02.05 at 3:40 pm

19

Rich Puchalsky 11.02.05 at 3:42 pm

jaybird: “My point is that limited government power is a very, very good thing when the Republicans are in power. And if that means that government power is limited when the Democrats finally get elected, that’s a price I’m willing to pay.”

And, as I wrote before, by paying this price you don’t buy anything. There is no such thing as a conservative who favors limited government in principle. All there are are conservatives who favor Republican governmental power and oppose Democratic governmental power.

20

Jaybird 11.02.05 at 3:49 pm

So the answer is to take the attitude that the government *SHOULD* have more license to do whatever it deems okay because, hey, it’s not like the opposite attitude means anything in the long run?

21

tim 11.02.05 at 3:52 pm

Why don’t you give me 3 historical examples where Congress have passed laws, based on icc powers & upheld by the courts, that parallel the plumbing example you gave.

What, were you sleeping through Raich vs. Ashcroft? Or is that too recent to count as “historical?”

22

Sebastian Holsclaw 11.02.05 at 4:01 pm

Even Raich, as far as it goes (which IMO is too far) doesn’t reach to the plumber example.

But it is a good question. For those who are so freaked out by Alito and Scalia’s view of the interstate commerce clause, what does the ICC mean? Why bother with putting it in if it means that Congress is unrestricted? If it is a restriction, what kind of restriction is it?

23

tcobb 11.02.05 at 4:08 pm

You reap what you sow. Result-oriented jurisprudence has always been an evil and undemocratic thing. It is a pity that so many progressives didn’t mind it when it was used in directions that they approved of, and now many are coming to the realization that they fed a monster that may now turn on them. Let us hope that Alito really does have respect for the notion that legal precedents should be the guiding star rather than whatever he thinks the law and Constitution SHOULD HAVE said.

24

Kosh 11.02.05 at 4:21 pm

jaybird: “My point is that limited government power is a very, very good thing when the Republicans are in power. And if that means that government power is limited when the Democrats finally get elected, that’s a price I’m willing to pay.”

Silly libertarian, rules are for Dems.

25

PersonFromPorlock 11.02.05 at 5:09 pm

Carter: You’re being paranoid here.

Nope, just cautious. The question isn’t what the federal government has done in the past, but what it could do if it wanted to. Suppose that the National Plumbers’ Guild (and I do apologize to them if such an organization actually exists) buys Congress entire and rams a law through forbidding self-plumbing, giving exactly the spurious justification I gave. What Constitutional demurrer could you make? Saying that the government hasn’t acted badly yet is really, really close to relying on the charity of strangers.

26

Seth Finkelstein 11.02.05 at 6:01 pm

I see two different issues here:

1) Does the Commerce Clause have a limit? Without going into Constitution-In-Exile land, I think reasonably the answer has to be “yes”. If it isn’t – that is, if there is no limit *at all* – this means it isn’t a *commerce* clause, but an arbitrary powers clause.

2) Given a limit, where do we place it? And this is where it gets very tricky – because many right-wingers want to run the limit problem in reverse, and ultimately make corporate regulation very much unConstitutional.

I suspect most of the argument over #1 is shadow-boxing over #2.

27

Brett Bellmore 11.02.05 at 7:00 pm

Well, if you’re going to admit that there IS a limit, you’d better face the real possiblity that we’ve already passed it, and are into unconstitutional territory. If you arbitrarilly rule that possiblity out, you’re not looking for the limit in the Constitution anymore, just searching for a post hoc rationalization.

28

jet 11.02.05 at 7:19 pm

We passed the limit a long time ago: WICKARD v. FILBURN.

29

Steven Crane 11.02.05 at 8:45 pm

Yeah, I’ve got to go with jet on this one.

The Wickard decision:
http://www.justia.us/us/317/111/case.html

Is there, under this interpretation, anything that Congress CAN’T do?

30

Stephen Kriz 11.02.05 at 9:40 pm

The Constitution doesn’t explicitly say that an individual is entitled to a fair trial, but very few Americans (even Alito I suspect), would argue that no such right exists. These “strict Constitutionalists” are morally constipated jackasses who have now sense of history or common sense.

31

jet 11.02.05 at 10:04 pm

Stephen Kriz,
Or perhaps it does.

Have you read the 5th amendment lately? I imagine the concept of “due process” predates the Constitution and was an established idea by the late 18th century. It really is an interesting document, you should spend some time, not just reading it, but perhaps even studying it.

32

Brett Bellmore 11.03.05 at 7:05 am

No, fair trials were important enough that it specified the components of a fair trial, such as the right of confrontation, trial by jury, habius corpus…

I must admit with some candor that I don’t expect the current Constitution to ever be restored; I think we passed the point of no return long ago. But we will have a new one someday, and if that new consitution is to be worth the paper it’s written on, the idea of “living constitutionalism” has to be completely discredited. It’s one thing for the decay to set in after 140 years, but we don’t want the edifice to be rotten on day one.

33

nick 11.03.05 at 7:53 am

It really is an interesting document, you should spend some time, not just reading it, but perhaps even studying it.

I’m sure that Jose Padilla is doing just that in the navy brig.

34

mikez 11.03.05 at 3:58 pm

Machine guns? Yawn. Congresscum ain’t gittin’ mah thermonucular device until they pry it from my cold, dead hands.

35

Scott 11.03.05 at 7:01 pm

Without application of the interstate commerce clause (icc), corporations would run amok. It was use of the icc that enabled the Feds to regulate hazard conditions in the workplace, child labor laws, minimum wages, environmental hazards etc. etc. States tend to be much more conservative

Which turns the Constitution into nothing more than a political weapon to use against your opponents (because we know you won’t grant those same conservatives as much leeway when they want something you consider wrong and the text of the Constitution would forbid) instead of a set of neutral rules we all have to live with.

If the Consitution means what a liberal says it means, because he is morally right and others are morally wrong, why should nonliberals bother obeying it other than threats of physical force from the cops?

36

Scott 11.03.05 at 7:20 pm

Speaking of machine guns, here’s a PDF of a letter where the ATF rules a shoelace is a machine gun.

37

Thomas 11.03.05 at 11:30 pm

Ornstein says “Some time ago, Jeffrey Rosen, a superb legal scholar, pointed out Alito’s dissent in a 1996 decision upholding the constitutionality of a law that banned the possession of machine guns. We are not talking handguns, rifles or even assault weapons. We’re talking machine guns.”

Which gives the game away.

I mean, it shouldn’t matter, on his view, whether we’re talking about knives or tanks–the principle should be the same. But by mentioning the particular facts in this way, as if they matter, he’s strongly suggesting that it isn’t principle, but the result that he’s after here. Ornstein isn’t interested in judicial restraint; he’s interested in “good policy”, by the lights of Ornstein.

38

Gary Farber 11.03.05 at 11:32 pm

“But Alito used his own logic to call for its overturn, arguing that […] thus Congress had no right to regulate it.”

As I wrote earlier today, this turns out not to be true, unless I’m missing something. Here is the decision and Alito’s dissent, which includes this:

This would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done. […] Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element–a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. section 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.

Is that, in fact, saying that Congress (or the states) can’t ban possession of machine guns? So far as I can tell, the opinion is very plain that he found technical fault with the way the law is written, and nothing at all that prevents Congress from correcting it. I don’t know if his analysis is “right” or “wrong,” but where’s the part preventing Congress from banning private machine gun ownership?

I’ve learned not to take anyone’s word for what a decision says, because most people tend to pass on mistaken hearsay.

39

Gary Farber 11.03.05 at 11:37 pm

I do find it interesting that 37 comments went by, and a post, discussing a decision, with no one bothering to link to, quote, or discuss, the actual decision. I guess that would be a distraction from getting straight to one’s opinion.

40

abb1 11.04.05 at 7:04 am

So far as I can tell, the opinion is very plain that he found technical fault with the way the law is written, and nothing at all that prevents Congress from correcting it.

I think it’s pretty clear that he doesn’t believe that this technicality can be corrected, because the empirical evidence he asks for, in fact, doesn’t exist. That’s my impression anyway.

41

Rvman 11.04.05 at 10:35 am

> if Congress made findings that the purely
>intrastate possession of machine guns has a
>substantial effect on interstate commerce

A Congressional finding doesn’t require much more than a committee meeting, a couple of witnesses expressing the opinion the ‘finding’ would ‘find’, and a vote. It isn’t much of an ’empirical’ standard. Alito knows this. He’s just bringing up the idea that the Congress should actually back up its claims of jurisdiction with more than an “I say so”.

42

Pithlord 11.04.05 at 12:18 pm

Canada, like the United States, is a federation in which the federal level of government is given jurisdiction over “Trade and Commerce.” Unlike the post-New Deal US courts, the courts interpreting this power (and other broad federal legislative powers) have consistently done so very restrictively.

Which country has the more social-democratic policies? (Note: All of this divergence has occurred since the 1930s when Canadian courts went the opposite direction of American ones. The Canadian healthcare system started in a single province, and is still provincially administered.)

California, alone, is bigger than all of Canada. Why don’t American liberals try to build social democracy in the states they could win a majority in?

43

Sebastian Holsclaw 11.04.05 at 12:39 pm

“I think it’s pretty clear that he doesn’t believe that this technicality can be corrected, because the empirical evidence he asks for, in fact, doesn’t exist. That’s my impression anyway.”

You clearly didn’t read the opinion in that case.

44

abb1 11.04.05 at 3:36 pm

That’s right I didn’t, so I’ll shut up now.

45

Scott 11.05.05 at 10:28 am

California, alone, is bigger than all of Canada. Why don’t American liberals try to build social democracy in the states they could win a majority in?

They’re afraid the lab rats would escape their experiment by moving to Oregon and Washington. No matter how wonderful it clearly is, it can’t work if people can opt out (despite the fact that nobody would opt out if it was half as wonderful as they claim it is).

46

b a benedict 11.05.05 at 4:18 pm

I’m not sure Alito did imply that there was amere “technicality” that could be fixed (and, really, if it’s a mere technicality that’s the problem and not a substanital federalism issue, then is exercising judicial review legitimate?), especially if you consider not only Lopez but Morrison, where the “mountain of evidence” of substanital economic impact resulting from gender-based violence was essentially ignored in Rehnquist’s opinion striking down VAWA, due largely to the imposition on state police powers.

As for the limits of the commerce clause, if you stick to a good faith application of the substantial effects test (and a modest judiciary), you might just squeeze Wickard in there (maybe), but Raich is just wrong.

47

Functional 11.05.05 at 9:48 pm

A genuine practitioner of judicial restraint would have allowed them a wide enough berth to do so. Alito’s colleagues did just that. But Alito used his own logic to call for its overturn

Used his own logic? What the hell. Alito was doing his best to apply the Supreme Court’s reasoning from Lopez; the majority was doing its best to avoid having to do so.

48

GreggMT 11.06.05 at 5:32 am

The GOP is really getting nervous about Iraq now. Eleanor Clift actually talked about Bush’s impeachment in her column today. As a result, we can now behold the hilarious spectacle of GOP drones actually whining that impeachment is anti-democratic and unfair.

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