GUNNING FOR CONGRESS
Samuel Alito's federalist bent makes John Roberts look like a moderate.

This article is reprinted from the American Prospect.

Predictably, proponents of Judge Samuel Alito's Supreme Court nomination have mobilized to scrub a particularly troublesome spot on his record -- a 1996 dissenting opinion in a case called United States v. Rybar, in which he voted to invalidate a federal law banning machine guns. Alito insisted that applying the statute to mere intrastate possession of machine guns exceeded Congress' power to regulate interstate commerce.

A year ago, constitutional pundit Jeffrey Rosen, a centrist who supported John Roberts' confirmation, said that Alito's argument in this case belied a "lack of deference to Congress that is unsettling." A week after Alito's nomination, staunch Oklahoma conservative Senator Tom Coburn agreed, acknowledging on Meet the Press that Alito's decision constituted "legislating" on turf that should be reserved for Congress, not judges.

But within days of Judge Alito's nomination, former Reagan Solicitor General Charles Fried was admonishing a New York Times interviewer not to worry. In a November 5 story, Fried downplayed Alito's dissent in Rybar as merely "a good faith effort to make sense" of a 1995 Supreme Court decision that had struck down a federal law prohibiting guns within 1000 yards of a school. In particular, Fried sought to sanitize Alito's position by equating it with a superficially similar opinion by Chief Justice Roberts.

Prior to and during his confirmation hearing, Roberts had successfully defused controversy over a 2003 dissent in which he questioned a D.C. Circuit decision upholding Endangered Species Act (ESA) protection for a species of toad found only in one state, California. Roberts noted that he had not voted to invalidate the federal action under review, but had simply suggested an alternative rationale for protecting the "hapless toad." Roberts claimed his alternative approach might better reconcile competing interpretations of the same 1995 decision on which Alito relied to strike down the machine gun ban. In his hearing, Roberts further mollified Democratic and moderate Republican critics by trivializing the 1995 case. He emphasized that the gun-free school zone decision in United States v. Lopez did not proclaim a new crusade to roll back Congress' authority to regulate interstate commerce; on the contrary, he assured the committee, Lopez was simply an aberrant case that turned on sloppy Congressional draftsmanship, not a signal to "junk" the decades of prior Supreme Court decisions allowing economic, environmental, civil-rights, and other landmark legislation.

In his hearing, Alito can likewise be expected to soft-pedal his machine gun dissent. But he should get far more skeptical and aggressive push-back than Roberts faced from Judiciary Committee Chair Arlen Specter and other committee members who grilled him about the Rehnquist Court's "denigration" of Congress in the name of federalism, in Lopez and subsequent cases. They should not let Alito squirm off the hook by simply explaining away his Rybar dissent, as Roberts was able to do. Any senator mindful of keeping congressional authority where it has rested for the last two-thirds of a century should vote no on Alito, unless the nominee delivers a clear and credible repudiation of his stand in that case.

Judge Alito's opinion points in a more troubling direction than Roberts' "hapless toad" dissent, especially as Roberts elaborated his views in his confirmation hearing. To begin with, as a strike at Congress, the current nominee's vote to void the machine gun ban outright is of a completely different order of magnitude from Roberts' suggestion of an alternative legal theory to uphold ESA protection of the toad. Realistically, Alito's Rybar dissent was comparable, not to Roberts' hapless toad opinion, but to a separate dissent in that case by D.C. Circuit Judge David Sentelle. Sentelle, widely recognized as a Constitution-in-Exile enthusiast (and one-time chair of the judicial panel that appointed Kenneth Starr independent counsel), would have barred ESA protection of a purely intrastate species altogether, a position equivalent to Alito's approach in Rybar.

Alito's opinion should raise an additional red flag because of its strained -- bordering on disingenuous -- attempt to pin the blame for his activist result on Congress itself. He made much of a supposed absence of congressional findings or statutory language expressly linking machine gun possession to interstate commerce. In fact, there were references to the commercial impact of machine gun possession in committee reports and floor statements generated in the process of enacting the law; Alito ridiculed these as "snippets." And he brushed aside extensive findings Congress had specified in enacting the three predecessor statutes on which the machine gun law was based, dating back to 1934. For a famously punctilious jurist, this sort of selective citation suggests a powerful inner itch to draw tight new boundaries around congressional authority.

With respect to Professor Fried, Judge Alito's dissent was by no means dictated by precedent. On the contrary, he was, and is, out on a limb. The radical gloss he chose to impose on the Supreme Court's Lopez decision was not only simultaneously rejected by his two Third Circuit colleagues; before the Third Circuit decision, it had been rejected by six other circuit courts that had faced the widely litigated issue. Earlier this year, Alito's theory was rejected by the Supreme Court itself. When, in June 2005, six Supreme Court justices (including Scalia and Kennedy) voted to sustain application of the federal narcotics laws to purely intrastate medicinal use of marijuana, they shredded arguments substantially identical to those Alito had offered to justify his broad reading of Lopez (and his narrow view of congressional power). Moreover, in that case, the Court specifically vacated and remanded to the Ninth Circuit Court of Appeals a 2004 decision by libertarian maverick Judge Alex Kozinski similar to Alito's Rybar dissent, with a pointed instruction to reconsider in light of its medicinal marijuana decision.

Before Congress in September, John Roberts emphasized the Supreme Court's 2005 marijuana ruling to support his contention that Lopez did not alter the expansive, post-New Deal understanding of Congress' commerce clause authority. In stark contrast, in the opening sentence of his machine gun dissent, Alito castigated the same, minimalist interpretation embraced by the new Chief Justice and all but two of his new colleagues, as turning Lopez into a "constitutional freak." Again, this is the sort of overwrought advocacy that Alito is noted for avoiding. That he was willing to abandon deference to Congress and his normally methodical approach suggests an overriding ideological commitment to, in his own words, "protect our system of constitutional federalism."

In calibrating the intensity of this zeal to curb federal power, it is worthwhile to step backward for a reality check. The subject matter addressed by the legislation at stake in Rybar is machine guns. Would any citizen with common sense doubt Senator Coburn's gut conviction that Congress has the power -- many would say the responsibility -- to deal with that subject? Are formal findings of fact or a statutory "jurisdictional hook" necessary to show that Congress had a rational basis for seeing uncontrolled possession of machine guns as a potential threat to interstate commerce? What does it indicate about this nominee's attachment to ideological abstractions, to say nothing of his judgment, when, with no apparent irony, he feels compelled to torture precedent and normal decisional standards to "protect our system of constitutional federalism" -- i.e., to protect his concept of that system from Congress' effort to protect the public from machine guns? Must Congress learn from expert witnesses at a hearing that no one possesses a machine gun to hunt deer?

A final wrinkle underscores Judge Alito's eagerness to proclaim intrastate possession of a machine gun beyond Congress' authority. To even reach this issue, he had to disregard the actual facts of the case. Defendant Rybar was no basement tinkerer who had converted a hand-me-down sharpshooter's rifle into a machine gun to display on the wall. Although he was convicted of mere possession, he was a licensed firearms dealer, arrested while selling two machine guns at a gun show. Such a transaction, with such a defendant, put the case at the vortex of the "traffic in firearms" that Congress had sought to control with the machine gun law and its predecessors. No one, not even Alito, could dispute Congress' authority to control such transactions under its writ to regulate interstate commerce. Nevertheless, he voted to invalidate the statute because, on its face, it might be applied to purely intrastate possession, even though in the case at hand its application was plainly constitutional. One of the most elementary canons of judicial restraint requires avoiding sensitive constitutional questions, except where clearly necessary; in contrast, Judge Alito stretched to announce a drastic, indeed unique constraint on congressional authority in a case where there was no need to face the issue at all.

In early August of this year, one month before the Roberts confirmation hearing, Judiciary Committee Chair Specter derided the "reinvigoration of federalism" in Lopez and other cases as "the hallmark agenda of the judicial activism of the Rehnquist Court" and a mere cover for "usurping Congress' authority." Specter and his colleagues must ensure that, once shielded by life tenure, no nominee will join Justice Clarence Thomas's crusade to correct the "wrong turn" of the New Deal Court. Chief Justice Roberts signaled in his hearing that he had no such back-to-the-future agenda in his hip-pocket. (One hopes he meant it!) In his outlier assault on Congress' effort to outlaw machine guns, Judge Alito put his intentions on this score genuinely in doubt.

Simon Lazarus and Lauren Saunders are attorneys with the National Senior Citizens Law Center.

© 2005 by The American Prospect, Inc.

This article is available on the American Prospect website.