Robert Reich had a commentary on NPR’s “Marketplace” yesterday discussing federalism and the Roberts nomination. Reich noted that federalism is one of the most important legal issues confronting the Supreme Court. Alas, most of the rest of his commentary was riddled with errors, including the oft-repeated false claim about Roberts’ views of the Endangered Species Act and the commerce clause. I’ve sent a letter to the editor of Marketplace, which is reproduced below:

Robert Reich’s August 10 commentary on Judge John Roberts contained numerous factual inaccuracies. First, and most important, Reich misrepresents Judge Roberts opinion in the Rancho Viejo v. Norton case challenging the scope of the Endangered Species Act under the Constitution’s commerce clause. Judge Roberts did not “argue[] that the federal government didn’t have the power to set national environmental rules that would limit real estate development.” That position was taken by Judge David Sentelle. In the opinion to which Reich refers, Judge Roberts called for the entire U.S. Court of Appeals for the D.C. Circuit to rehear the case en banc. He did not argue that the federal government lacks constitutional authority to regulate environmental matters–in this case, activities threatening the endangered Arroyo Toad. Rather, he noted that the D.C. Circuit’s jurisprudence on the matter was incoherent and in direct conflict with the rationales adopted by the other circuits in addressing the issue. Judge Roberts made explicit that cleaning up this doctrinal confusion was his reason for urging en banc review of the case and noted that such review “would also afford the opportunity to consider alternative grounds for sustaining” the regulation at issue. Even if Roberts had echoed the Sentelle view (and, again, he did not), this would have no impact on federal environmental regulations governing commercial activity, and would not have the impacts on the business community that Reich suggested.
More broadly, the biggest corporate concern with federalism concerns the doctrine of preemption. This is not a question of what the federal government has the power to do. Rather, it concerns how broadly to interpret federal regulatory statutes, and whether such statutes should preempt potentially conflicting state rules. While the Supreme Court often splits on such questions, it rarely does so along traditional ideological lines. Justices Scalia and Breyer are among those most likely to find a federal regulatory statute preempts state law, whereas Justices Stevens and Thomas are those most likely to side with the states on such questions. Thus, it is also inaccurate to claim that it is “prevailing conservative orthodoxy” that the Supreme Court should “refus[e] to require that federal law preempt state law.” Rather, conservatives are split on this question.
Alas, there were even more mistakes in the piece. The Supreme Court did not “strike down” California’s medical marijuana law. Rather, it said that the federal government could prohibit medical use of marijuana even if California sought to legalize it. If anyone “struck down” California’s law, it was Congress, not the Court. In addition, contrary to the introduction’s suggestion these federalism questions do not involve “the same type of federal intervention” as was involved in the Schiavo case. The latter involved congressional intervention into state legal proceedings. The issues Reich discussed involve a) the extent of legislative regulatory power under the commerce clause and b) whether given federal statutes preempt state laws concerning the same subject matter. These are quite different things.
Federalism questions are certainly important to American business, and I am glad to hear them discussed on Marketplace. I hope that Marketplace will correct the record on these points and that future Marketplace reports and commentaries on these issues are more accurate.
Sincerely,
Jonathan H. Adler