A Stitch in Haste

I generally like Senator Arlen Specter (R-PA), and I'm a big fan of his proposed asbestos liability fund.

But I'm a bit befuddled by his letter to Supreme Court nominee John Roberts:

In a three-page letter to Judge Roberts, Mr. Specter raises pointed questions about two recent court decisions invalidating legislation Congress passed under its authority to regulate interstate commerce. That power has for decades been used to produce expansive legislation, including environmental protections, civil rights laws and the Americans With Disabilities Act.

The current court has been trimming back the authority, however, and Democrats have vowed to make interstate commerce a big issue in the Roberts hearings. Now Mr. Specter, a Republican who is widely regarded as the panel's sharpest constitutional lawyer, is suggesting that he shares the Democrats' concerns.
...
He said he was particularly upset that the court, under Chief Justice William H. Rehnquist, had questioned lawmakers' "method of reasoning" in striking down laws. "Well, that's just another way of saying Congress is incompetent," Mr. Specter said.

Those two pebbles in Specter's shoe, U.S. v. Lopez, 514 U.S. 549 (1995), and U.S. v. Morrison, 529 U.S. 598 (2000), that — gasp! — actually placed limits on Congressional power under the Commerce Clause, didn't in my opinion suggest that Congress was "incompetent." (This, by way of contrast, pretty much proves that Congress is incompetent. As does this, or this or this or this. Oh, and this too.)

The Commerce Clause cases weren't Congress being incompetent. They were Congress being unconstitutional. And totalitarian. And just plain wrong.

In any event, given that the medical marijuana case, Gonzales v. Raich, No. 03-1454 (2005), has now relegated Lopez and Morrison to the footnotes of history, I don't think Senator Specter has to worry about those pesky checks and balances, or that pedantic canard of "enumerated powers" or, heaven forbid, any concern that "commerce" should actually be read to mean, um, "commerce."

The Commerce Clause is dead dead dead. Senator Specter has absolutely nothing to worry about.

Other thoughts at Pejmanesque, Catallarchy, Greyhame.

"The robbery offense in [the Hobbs Act] is to be utilized only in instances involving organized crime, gang activity, or wide-ranging schemes."
--Department of Justice, U.S. Attorneys Manual 9-131.040

We need to keep an eye on this guy:

The effect of our Court's rulings is that every local robbery of a business in the United States is a federal crime. I acknowledge that the Supreme Court has held that Congress intended to include within the scope of the Hobbs Act* conduct that was already punishable under the state robbery and extortion statutes. However, I cannot believe that this is what the Founding Fathers intended. Moreover, I have harbored the hope that the Supreme Court in Lopez was seeking to restore a proper state-federal balance that gives actual meaning to the term federalism. I also hope that the Supreme Court will consider the issue[.]

That from Senior Sixth Circuit Judge Richard F. Suhrenreich on the question of whatever happened to "new federalism" commerce clause jurisprudence, and concluding that his circuit's precedents (which he felt compelled to apply in upholding a criminal conviction -- maybe he's not so "activist" after all) conflict with the landmark Supreme Court cases U.S. v. Lopez** and U.S. v. Morrison***, both holding, in essence, that the federal government should stick to its federal knitting and leave local crime to local law enforcement.

The case is U.S. v. Baylor, No. 07-3002 (February 26, 2008) (PDF - 5 pages) (Via How Appealing.)

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*18 U.S.C. § 1951.

**U.S. v. Lopez, 514 U.S. 549 (1995) (federal government may only criminalize economic activity that "substantially affects" interstate commerce).

***U.S. v. Morrison, 529 U.S. 598 (2000) ("the suppression of violent crime and vindication of its victims" has traditionally been a state and not a federal matter).