Alito may dismantle environmental protections under Commerce Clause

[Wordie]

A very important analysis of the possible effect of Judge Alito's confirmation on the environment:

More Important Than Roe

Bush’s appointment of John Roberts and, now, of Samuel Alito to the Supreme Court has predictably resurrected our perennial national debate over abortion and Roe v. Wade. While undeniably important, this emotionally fraught subject has distracted attention from a matter of greater consequence, albeit one unlikely to capture the public imagination: namely, a little matter called the Commerce Clause.

If your mind immediately begins to founder in boredom with that alliteration, consider that this small clause underlies more federal regulation and more powerfully affects everyday life than does any other provision in the U.S. Constitution. You need not be terribly interested in business or commerce to care about laws dependent on this clause: if you care about laws against racial discrimination, laws prohibiting exploitation of child labor, laws providing for a minimum wage, or laws limiting private access to machine guns, you should be concerned about the Commerce Clause. If you give a damn about environmental protection, you should be more than concerned.

The article then goes on to say that there is a danger that we will lose such oversight, as these issues have been overshadowed by others, such as abortion, gay rights and separation of church and state. But the conservatives have been slowly dismantling the protections of the commerce clause, and that the decisions rendered by the new justices will be crucial in determining whether such a trend continues.

The predictable conservative retort is, “If the constitutional text, strictly interpreted, does not suit you, pass a constitutional amendment!” All well and good unless you acknowledge the real world power of vested economic interests which are more than equipped to prevent the overwhelming legislative will needed to amend the Constitution. In the real world, if conservative jurists succeed in paring back the Commerce Clause, it may be a generation or more (if ever) before the needed power to protect the environment is brought back into existence. In that time, species and habitats will have been lost forever, aquifers and waterways will have been drained and polluted beyond repair, and the only world we have will have been unalterably impoverished. These are wounds that no amount of time will heal.

As an appellate judge, Alito dissented from a ruling upholding federal regulation of machine guns as a legitimate exercise of the commerce power. His dissent went beyond the apparent requirements of existing Supreme Court precedent, and pushed for a narrow view of the Commerce Clause that could render rational environmental protection unconstitutional (to say nothing of rational regulation of automatic weapons). Further, in his testimony before the Senate, Alito has described his judicial philosophy in classic, originalist terms—terms that would freeze the Commerce Clause in an eighteenth century milieu utterly inappropriate to governing in the modern world.

It is a shame that Supreme Court confirmation hearings have been largely reduced to perfunctory affairs, where predictable questions elicit predictable evasions and little genuine discussion. Ideas matter, judicial philosophies matter, and we owe it too ourselves and to future generations to take some care about those we place on the Court. If, as now appears likely, Judge Alito is confirmed, the consequences may be far more dire and long lasting than even an outright reversal of Roe v. Wade. At stake is the real world—a world that will long outlast every person now living, every outrageous abuse of civil rights in the current generation, every contemporary injustice. In the long march of time, what we do with that real world, and the state we leave it in, will dwarf all other issues in moral significance. We should not forfeit the constitutional right to sane environmental regulation because of some quaint attachment to eighteenth century understandings, and we should not confirm any Supreme Court appointee who might give us that result.

The article also makes this point:
...the Supreme Court itself recently invalidated certain protections of critical wetland habitats under the Clean Water Act on a statutory basis, while hinting strongly that it had construed the statute narrowly to avoid a potential constitutional question—namely, whether such legislation, construed broadly enough to permit protection of these wetlands, would exceed the scope of Congressional authority under the Commerce Clause.

http://www.etymos.com/ (It's very much worth reading the entire article. Scroll down a bit. It's the January 24th entry.)

This may be a convincing argument for Senators in those states where environmental concerns run high. I don't have a legal background, so I'm not able to evaluate the merits of this argument legally, but it sounds like it makes sense.

[Dagaz]

1. The commerce clause is abused

It was the reasoning behind prohibiting medical marijuana to be distributed in CA. To me at least I find that abuse.

[Wordie]

2. This aspect of Alito's probable tilt needs more attention, imho! eom

[TaleWgnDg]

3. What "Dormant Commerce Clause Doctrine?" There is???

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What "Dormant Commerce Clause Doctrine?" There is? No, not to neo-cons there is. Neo-cons want to turn the legal clock back to pre-1938 wherein the federal congress could pass no laws regarding interstate actions. Which is why Alito, Scalia, Thomas, Roberts were (are to be) seated on the bench. Their goal? To eat away at case law thereby minimizing such precedent stare decisis as the Dormant Commerce Clause Doctrine u/ the guise of "states rights" and other neo-con legal foolishness. It's all about divide and conquer. Quite simple, really. The biggest inroad was when SCOTUS failed to acknowledge that guns are interstate commerce in United States v. Lopez (93-1260), 514 U.S. 549 (1995) (syllabus text).

It was pure illogic then and it continues downhill ever since. Indeed. Welcome to the world of pre-1938 (and earlier) where congress could pass no laws regulating interstate actions. Nor could states (so-called "states rights") muster the authority to regulate the wheels of commerce. The result? Why of course. No regulations, no laws to "infringe" upon corporate America! Sound familiar to you history buffs? political science buffs?

My chagrin is "Why the surprise?"





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edited to add:
en.wikipedia has a somewhat fair overview of the "Dormant Commerce Clause" as of this time Friday, January 27, 2006. That is, if you skip over the attempt in this wiki article to explain how SCOTUS has interpreted this doctrine. It does need some legal corrections.
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