Circle the wagons, judges and pols -- the arrows are flying

Should the Supreme Court rein in Congress? That’s the question our LiveCurrent wranglers wrestled with this month. Here’s an edited excerpt. Leave your own brand at

Yeshiva University’s Marci Hamilton wants Congress restrained:

For the sake of whichever party is out of power in Washington, the answer has to be “yes.” Congress has come to view itself as an entity with plenary power to enact any law it desires. To date, the Rehnquist court has produced a very modest federalism doctrine that checks congressional exercises of power only on the margins. The court took a serious misstep last term when it held in Gonzales vs. Raich that the state of California could be forbidden from legalizing medical marijuana because the federal government is engaged in a comprehensive war on drugs. That decision betrayed the principled heart of federalism, which is to permit the states to be 50 social experiments. There is no reason for Congress to be able to trump a wholly intrastate activity involving health, safety and welfare.

Douglas Kmiec of Pepperdine took on Congress:


The Rehnquist court has sent confusing signals on the scope of Congress’ commerce power. Chief Justice William Rehnquist recurred to James Madison’s observation in Federalist 45 that “the powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in the state governments are numerous and indefinite.” The powers remaining in the state governments today are still indefinite, but after Gonzales vs. Raich this past term, they are also less numerous.

In Raich, the court extended federal power by holding that Congress could prevent a woman with a brain tumor from using a home-grown substance to survive.

Harsh? Yes. Unconstitutional? Apparently not.

But Lawyer Edward Lazarus defended lawmakers, arguing that they have exercised restraint:


Last time I looked, Congress wasn’t really up to too much except the usual orgy of pork-barrel politics. In the last decade or so, it is the executive branch and the Supreme Court that have expanded their authority and that pose a greater immediate threat to our freedoms than Congress.

It is certainly true that Congress is capable of lots of ill-advised legislation but, generally speaking, I still prefer the mistakes of elected legislatures to the mistakes of unelected, life-tenured Supreme Court justices, who have shown themselves to be plenty fallible.

And the University of Chicago’s Cass Sunstein had his back:

The Rehnquist court has invalidated more than three dozen acts of Congress, and some of those invalidations are extremely hard to defend.


Of course it is appropriate for the court to enforce constitutional limitations, but the court’s appropriate posture is one of humility and modesty in reviewing the decisions of a coordinate branch of government.

Richard Epstein refused to take a side:

As I read the remarks of Ed Lazarus and my colleague, Cass Sunstein, I could not resist thinking back to the famous Gershwin line, “I need someone to watch over me.” Change the singular to the plural and we have the position of both Congress and the states.

The problem in most cases is not whether Congress or the states are better at protecting the liberties of ordinary subjects. Sometimes neither does a particularly good job.


Hamilton took aim at Lazarus:

Eddie has vastly underestimated the power of national interest groups behind the scenes -- scenes the vast majority of voters will never enter -- to push policy their way.

Liberals make a major misstep when they accede unlimited, or unchecked, power to Congress, especially in an era when gay marriage is on the table. The institution of marriage is fundamentally a state-law issue. Federal intervention is unconstitutional under existing case law. Preserving states’ rights in areas like gay (or not gay) marriage serves everyone’s interests in the long run -- more experimentation and more power to those out of power in D.C. On Eddie’s reasoning, though, Congress could usurp the state’s power over marriage at will and impose a one-size-fits-all marriage formula on the country.

Lazarus shot back:


I wonder whether the gays and lesbians in Texas, Georgia and Colorado -- the states whose hateful anti-gay laws have triggered Supreme Court cases -- realize that their real enemy is the federal Congress? Marci talks in fine-sounding generalities about the value of federalism to progressives, but pardon me if I have my doubts.

Erwin Chemerinsky reminded us of the showdown just ahead:

Will Supreme Court nominee John G. Roberts Jr. favor dramatically narrowing the power of the federal government and denying it the ability to enact necessary legislation? That is the key question in the discussion over federalism. For example, Justice Clarence Thomas has argued that Congress’ power to regulate interstate commerce should be limited to regulating economic transactions and that Congress’ spending power should be greatly curtailed. If this were the law, every federal environmental law, most federal criminal laws, many federal civil rights laws and countless spending programs would be deemed unconstitutional. If this is Roberts’ view, he should be denied confirmation.