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States vs. The Feds: All Eyes On Roberts

Business Weekly
Monday, August 8, 2005
Lorraine Woellert

The fractious debate over federalism will be center stage at his confirmation hearings.
Who exactly is Supreme Court nominee John G. Roberts Jr., and what does he stand for? Some Washington Democrats see the answer in Roberts' association with the conservative Federalist Society, which advocates states' rights and limits on federal power. But the White House has gone out of its way to insist that Roberts, currently a judge on the U.S. Court of Appeals for the D.C. Circuit, has never been a member of the society.

The spat may seem to be just another Beltway brouhaha, but don't be fooled. It is at the center of a heated debate over Roberts and the sort of Supreme Court Justice he would make. In the last decade the federalist movement, made up of conservative lawyers and legal scholars who believe that Washington has run roughshod over the powers that the Constitution reserves for the states, has grown increasingly influential. The movement's record before the Supreme Court is mixed, but the court has shifted more sharply toward reining in congressional power in recent years. Given Roberts' limited record, everyone from corporate executives and environmentalists to abortion-rights activists wants to know whether he'll push the cause of states' powers further.

Business has a huge stake in that question. For decades, Congress has invoked its Constitutional authority "to regulate Commerce...among the several States" to intervene in everything from employment practices to protections for endangered species. As a rule, corporations abhor regulation. But when regulation is inevitable, they would rather have a single national standard than 50 diverse state rules. States' rights are "a double-edged sword for business," says Robert Gordon, senior vice-president of the liberal Center for American Progress. "Companies would like to be rid of a lot of federal regulation, but if Congress lost the power to regulate in a lot of these areas, you'd have a patchwork."

No one expects Roberts' views on states' rights vs. federal powers to derail his candidacy. Yet figuring out where he comes down will be a central focus of his confirmation hearings. His leanings will have big implications for a host of hot-button issues, from economic regulation to abortion to civil rights. And while the tussle over federal power encompasses several legal principles, much of the debate will come down to how Roberts might interpret the Constitution's commerce clause. Says Douglas T. Kendall, executive director of the Community Rights Counsel, a Washington-based public-interest law firm: "The stakes in the direction of the commerce clause could not be any higher."

The last time the commerce clause took center stage was in the late 1930s: President Franklin D. Roosevelt was threatening to pack the Supreme Court to dilute the power of conservative justices who struck down New Deal legislation as an overreach of Congress' authority. After FDR's 1936 reelection the court finally saw things his way, upholding the National Labor Relations Act in 1937. Since then successive courts have allowed Congress to expand the commerce clause to promote Social Security, the minimum wage, the Civil Rights Act, and other programs. When the 1960s civil rights movement discredited "states' rights" as a euphemism for segregation, federal power reigned supreme.

But 10 years ago, Chief Justice William H. Rehnquist hit the brakes. In 1995, the Supreme Court struck down a federal law requiring states to maintain gun-free zones around schools, ruling that the statute had nothing to do with interstate commerce. In 1997 the court invalidated the federal Religious Freedom Restoration Act, which was meant to protect religious worship from such "undue burdens" as restrictive zoning imposed by state and local governments.

The court delivered a double whammy in 2000 when it weakened the Age Discrimination in Employment Act and watered down the Violence Against Women Act. The following year the justices limited the scope of the Clean Water Act and gave a nod to state sovereignty with a decision that stripped state workers of their right to sue under the Americans with Disabilities Act (ADA).

But the states' rights backers aren't winning them all -- which makes Roberts' role as a replacement for retiring Justice Sandra Day O'Connor all the more crucial. In recent years, O'Connor moderated her long-held support of states' over federal power. In 2003 she joined a 6-3 majority that stunned court watchers by upholding congressional authority to pass the Family & Medical Leave Act. This past June advocates of a limited federal role were dealt another blow when the Supreme Court ruled that the Justice Dept.'s authority to police illegal drugs trumped a California law that allowed seriously ill patients to use marijuana for medicinal purposes.

Democrats already are grilling Roberts on his view of the commerce clause, and they have won some assurances. After a private July 26 meeting with the judge, Senate Judiciary Committee member Charles E. Schumer (D-N.Y.) was cautiously optimistic. "I think a lot of people are going to be happy with his views on the commerce clause -- at least people of my philosophy," Schumer says.

Still, Roberts' ultimate stance in the states-vs.-feds struggle looms as a big question mark. Before he became a judge in 2003, Roberts had argued both sides before the Supreme Court. As a lawyer for the U.S. Chamber of Commerce, he supported federal marine safety standards when a state court wanted to punish a boat maker for not installing propeller guards. But in 2002 he successfully defended California's right to temporarily prevent building near Lake Tahoe to protect against overdevelopment. Local landowners had argued that the state was unconstitutionally depriving them of higher returns on their property.

As a judge, Roberts has faced the states' rights question only once. In his now-famous opinion on the arroyo Southwestern toad in Rancho Viejo v. Norton, he was skeptical of how the Endangered Species Act could invoke interstate commerce to protect a toad that lives only in California. But while Roberts dissented from the majority, which decided in the toad's favor, he didn't join fellow judge David B. Sentelle, who slammed the majority for upholding regulation of "an activity that is neither interstate nor commerce." Roberts "could have gone with Sentelle to indicate he was part of the brigade of fire-breathing conservatives, and he didn't," says Simon Lazarus, public policy counsel to the National Senior Citizens Law Center.

Conservatives hope Roberts will breathe more fire once he has donned the Supreme Court's robes. In today's expansive view of the commerce clause, "Congress has the power to regulate anything and everything," says Roger Pilon, vice-president for legal affairs at the libertarian Cato Institute. "The result of that is you've got a leviathan instead of the limited government that James Madison envisioned."

Liberals are just fine with that. And conservatives have been known to put pragmatism over their states' rights principles, as when business pushes Uncle Sam to preempt state regulators or when congressional Republicans snatched the Terry Schiavo right-to-die case out of the Florida courts. So when Roberts faces senators in September, both sides of the political spectrum will be eager to try to pin the Supreme Court nominee down. Given the wide swath that federalism cuts through American life, his answers could reverberate for a generation and beyond.

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