President Obama’s “empathy” qualification for judicial nominees applies to more than just the traditional hot-button issues that come before the Supreme Court. In opposing John Roberts’s nomination, then-senator Obama said that a properly qualified and empathetic judicial nominee should possess a view of the Constitution’s commerce clause (the basis for nearly all regulation by the federal government) that permits government action “only tangentially related to what is easily defined as interstate commerce.” There has been some effort by the Supreme Court in recent years to narrow this broad view of the commerce clause, but reining in regulation has been the exception, not the rule, ever since the 1940s. Judge Sotomayor’s decisions explicitly involving the commerce clause reveal little about how she would rule on commerce-clause cases as a justice. But juxtaposing those decisions with her overall judicial philosophy reveals dangerous similarities to the mindset of the New Deal–era justices who stretched the commerce clause, and as a consequence the powers of the federal government, far beyond what the framers had intended.
The commerce clause gives Congress “Power to . . . regulate Commerce . . . among the several states.” It was intended to prevent the building of trade barriers between states; the inability to do so was a key failing of the Articles of Confederation. Law professor Randy E. Barnett notes in his article “The Original Meaning of the Commerce Clause” that in the 63 uses of the word “commerce” in the Federalist Papers, it never refers to anything other than “trade or exchange.” This meaning was understood by the public at the time the Constitution was adopted, and reinforced by John Marshall, the first chief justice of the United States, in Gibbons v. Ogden. Furthermore, the commerce clause was understood as referring only to trade or exchange involving more than one state. “The enumeration of the particular classes of commerce to which the power was to be extended,” to quote Chief Justice Marshall, “presupposes something not enumerated” — that “something” being what the federal government could not regulate, namely “the exclusively internal commerce of a State.” However, economic changes brought on by the Industrial Revolution would lead the court to alter the definition of the commerce clause over time.
In 1942, in Wickard v. Filburn, the court implemented the commerce-clause doctrine embraced by President Obama. Just as the Obama administration has refused to waste the opportunity provided by the current economic crisis to expand federal regulation, so too the New Deal Congress made the most of the Great Depression. In 1938, Congress passed the Agricultural Adjustment Act, which regulated how much wheat a farmer could produce. Roscoe Filburn was brought to court for exceeding his production allotment under the act. Filburn argued that his wheat was meant only for private consumption. It was not going to enter into commerce of any kind, let alone interstate commerce.
Using reasoning in accord with Sotomayor’s assertion that judges “make policy,” Justice Jackson, in his Wickard decision, quoted Justice Holmes as noting that “commerce among the States is not a technical legal conception, but a practical one,” drawn from experience. Justice Jackson continued that economic effects have “made the mechanical application of legal formulas no longer feasible.” In place of “legal formulas” came whatever the court could view as having a “substantial effect on interstate commerce,” including Filburn’s wheat grown for his own use on his own farm. This holding in Wickard allowed Congress to regulate virtually any activity, economic or not. Not only did the Wickard decision “extend words beyond their normal, obvious import,” as Chief Justice Marshall had warned against in Gibbons, but it also made the federal government, as Justice Thomas would later note in Gonzales v. Raich, “no longer one of limited and enumerated powers.”
The most notable commerce-clause case handled by Judge Sotomayor was U.S. v. Giordano. Sotomayor held that a federal law prohibiting phone calls that transmit the contact information of a minor in order to engage the minor in illicit sexual activity could apply not only to calls across state lines, but also to calls within a state. She based her view on the Rehnquist Court’s holding in U.S. v. Lopez — the first attempt since World War II to rein in commerce-clause regulation — which said in part that Congress could regulate the “instrumentalities” of interstate commerce. In Giordano, the “instrumentality” was the nationwide telephone network.
By itself, Sotomayor’s holding in Giordano is in line with the Rehnquist Court’s view in Lopez of appropriate federal regulation. But the majority in Lopez did not directly face the regulation of the “instrumentalities” of interstate commerce the way Sotomayor did in Giordano, and neither the Supreme Court nor Congress has placed specific limits on the use of that regulatory power. This has left the door open for Congress to assume — as Jesse Choper and John Yoo noted in their article “The Scope of the Commerce Clause after Morrison” — “substantial authority to establish uniform federal rules over a vast amount of noncommercial conduct.” This authority could provide cover for the Obama administration’s new and proposed regulations in the fields of health care and the environment, and would face little challenge in Sotomayor’s jurisprudence, given her embrace of “legal realism.”
Legal realism is a method of interpretation that rejects what Sotomayor has called, quoting Jerome Frank, “the public myth that law can be certain or stable.” It stands in contrast to legal formalism, which interprets the law in the light of its plain and original meaning. Legal realism has a history of expanding the federal government’s regulatory reach under the commerce clause. The majority in Wickard were following legal realism when they discarded “mechanical” approaches to the commerce clause. Justice Souter dissented from the Rehnquist Court’s attempt to curb federal regulation in Lopez by rejecting the “categorical formalism” inherent in an original understanding of the commerce clause. In the realist view, the meaning of the Constitution in interpretation is less important than experience — whether that experience comes “from the course of business,” as in Wickard, or whether it is the life experience of a wise Latina woman. Embracing “experience” over the meaning of the law allows a judge, as Sotomayor said at Suffolk University Law School, to “develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”
Assuming she is confirmed, Justice Sotomayor would be in a position to apply legal realism to the commerce clause under the flag of empathy. Her realism could reject the “legal formulas” that prohibit government from taking over companies, in favor of empathy for those employed by a company “too big to fail.” It would encourage her to have empathy for the “gullible” Americans mentioned by President Obama when justifying his proposal for a consumer protection agency to regulate ordinary bank accounts. Empathy could be extended to the environment, allowing the court to uphold new fuel and emissions regulations. Health-care policy could get empathy as well, justifying federal nutritional and wellness regulations imposed on individual Americans.
Just as then-senator Obama saw a judge’s view of the commerce clause as a crucial test of suitability for the Supreme Court, so should current conservative senators. They should ask Sotomayor if the federal government is obligated to have more than a “rational basis” for believing that something substantially affects interstate commerce before it can enact a regulation. She should be asked to explain what is the scope of government regulation of non-economic activities, what limits there are to regulating the “instrumentalities” of interstate commerce, and how states can preserve their plenary powers in the light of these regulations.
The Rehnquist Court’s successes in reducing the scope of the commerce clause have been some of originalism’s most notable achievements, but they have not erected permanent barriers against undermining federalism. If the Senate does not press Judge Sotomayor to demonstrate how empathy and legal realism square with the plain words of the commerce clause, we ensure empathy for the least deserving entity, the federal government.
– Will Haun is policy chairman of the Young Conservative Coalition and will begin his first year at the Catholic University of America’s Columbus School of Law this fall.
