Judge Roberts

Debating the Power of the Presidency
Debating the Power of the Presidency
Some say John Roberts' biggest impact on the high court could come in cases on wartime executive authority -- not a right to abortion.
By Henry Weinstein, Los Angeles Times Staff Writer
August 14, 2005

On July 15, the day President Bush interviewed John G. Roberts Jr. about an appointment to the Supreme Court, the judge was part of an appeals court panel that approved broad presidential powers in the war on terrorism.

The ruling gave the administration a green light to use military tribunals to try those labeled "enemy combatants" at the U.S. base at Guantanamo Bay, Cuba. And it said that those combatants had no right in U.S. courts to enforce provisions of the Geneva Convention on the treatment of prisoners of war.

"No decision, by any court in the wake of the Sept. 11, 2001, attacks has gone this far," said Neal K. Katyal, a Georgetown University law professor and attorney for one of the alleged enemy combatants, Salim Ahmed Hamdan, a Yemeni accused of being Osama bin Laden's driver and bodyguard.

How much power the president should have to detain people like Hamdan is among the hottest issues in American law. But it has received little attention so far in the debate over Roberts' nomination. That does not surprise those who have studied past confirmation battles.

Like generals, senators often fight the last war, focusing on the issues of previous decades, not those of the future, said Michael Comiskey, a political scientist at Pennsylvania State University and an expert on the history of Supreme Court nomination battles.

He noted that President Nixon successfully nominated four justices to the high court between 1969 and 1971. "No senator asked any of them a question about abortion," Comiskey said. In 1973, the Supreme Court decided Roe vs. Wade, declaring that the Constitution gives a woman a right to end her pregnancy.

Today, the debate over Roberts has focused on the generation-long fight that the Roe decision kicked off. But many legal experts on the left and the right, as well as political scientists and activists, believe that executive power could be the area in which a Justice Roberts would have the biggest impact.

The reasons involve Roberts' background ?- a lawyer for the White House and the Justice Department ?- and the fact that the nation is engaged in what may be a prolonged war on terrorism that is expanding the boundaries of the president's power.

"I think it's crucially important," said Neil Kinkopf, a liberal law professor at Georgia State University in Atlanta who worked in the Clinton administration. "There is no more important issue on the court's docket over the next few years than this one."

John C. Yoo, a conservative law professor at UC Berkeley, who has worked in the Bush administration and advocates enhanced presidential power, agreed.

"It's inevitable" that the court "will be confronted with a whole series of questions on foreign relations law and international law that would have been beyond the imagination of people in 1981" when retiring Justice Sandra Day O'Connor was appointed, Yoo said.

He predicted that the wars on terrorism and in Iraq ?- as well as the Patriot Act ?- would generate cases that would prove more difficult for the high court than those spawned by past wars.

"They will be even harder because the war is so different since Al Qaeda is not a nation," Yoo said. "There are no precedents."

The Bush administration has made extensive claims of presidential authority in the fight against terrorism, and so far has had mixed success in the courts. The biggest setback for the administration came in an opinion by O'Connor last year that rejected the argument that the president had unchecked power to imprison enemy combatants.

"We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," O'Connor wrote. Even during wartime, the Constitution "assuredly envisions a role for all three branches [of government] when individual liberties are at stake."

The proper balance among those branches has been debated in the courts throughout the nation's history. During wartime, courts have tended to give the president considerable latitude, based on the assumption that he had superior knowledge of military needs.

Chief Justice William H. Rehnquist, for whom Roberts clerked after graduating from Harvard Law School, wrote a book on the subject titled "All the Laws but One: Civil Liberties in Wartime," in which he quoted an old Latin maxim: Inter arma silent leges ?- in times of war, the laws are silent.

Based on material made public thus far, Roberts does not have a long paper trail on the issue of executive power. Legal experts, particularly those who are dubious of broad presidential claims to authority, have urged senators to ask him questions about his views on Supreme Court precedents.

But both sides in the debate over presidential power predict that because Roberts served eight years in the executive branch, he probably will sympathize with presidential claims of authority.

"Insofar as he served in the White House, you have an inclination by preparation to be sensitive to things that encroach on presidential authority," said Douglas W. Kmiec, a Pepperdine University law professor.

A few memos that Roberts wrote during his years in government, and a handful of appeals court decisions in which he has participated, also provide some clues to his thinking.

In the mid-1980s, according to documents released in July, Roberts, an associate White House counsel, wrote that President Reagan had the authority to invade Grenada even though there had been no formal congressional authorization.

The president has "inherent authority in the international area to defend American lives and interests," Roberts wrote in a memo to White House Counsel Fred F. Fielding after former Supreme Court Justice Arthur J. Goldberg raised questions about the legality of the invasion. "This has been recognized at least since the time President Jefferson sent the Marines to the shores of Tripoli," Roberts wrote.

In another memo from that era, Roberts said that the Immigration Emergency Act, proposed after the Mariel boatlift brought 125,000 Cuban refugees to the United States in 1980, properly permitted the president to "flexibly detain illegal immigrants and freely transport them between detention facilities." Roberts acknowledged that the measure gave the president "a broad grant of emergency powers" but said none ran afoul of the Constitution.

Last year, Roberts agreed with the Bush administration that the president had the power by executive order to strip federal courts of jurisdiction to consider cases against officials of a foreign government. In that case, American troops who had been imprisoned and tortured during the 1991 Gulf War sought to sue Iraqi officials.

In 2003, a federal judge in Washington awarded nearly $1 billion to the 17 soldiers. But as their case moved through the court system, the U.S. invaded Iraq and overthrew Saddam Hussein's regime.

In July 2003, just two weeks after the former POWs won their case, the Bush administration intervened, contending that their claims should be dismissed because Bush had voided all such claims against Iraq, which by then was occupied by U.S. forces.

Roberts was part of a unanimous three-judge panel that ruled against the 17 former POWs.

Legal scholars who favor strong power in the White House find Roberts' record on the issue encouraging. But for those wary of the prospect of Roberts succeeding O'Connor, those memos and rulings are troubling signs.

"A perennial war or a war that does not end in anyone's lifetime" raises difficult questions about the limits of executive power, said Michael J. Gerhardt, a University of North Carolina law professor.

"No one wants to sacrifice security," he said. But "to some extent liberty is not protected just by individual guarantees but also protected by the separation of powers. The separation of powers defines what each branch can do. That enhances liberty. We sometimes forget that."

Specter Presses Roberts on His Commerce Clause Views
Judiciary Committee Chairman Arlen Specter Presses Judge John Roberts on His Commerce Clause Views:
Will The "Ginsburg Rule" Apply?
By JOHN W. DEAN
Friday, Aug. 12, 2005

Senator Arlen Specter of Pennsylvania knows his way around the Constitution; indeed, Richard Nixon considered appointing Specter to the Supreme Court. He also knows his way around Capitol Hill, where he has served since 1986. Now Senate Judiciary Committee chairman, Senator Specter is putting his expertise and experience to good use: He has sent a letter to Supreme Court nominee Judge John Roberts, asking about his "thinking on the jurisprudence" of the holding by the Rehnquist Court "which overturned almost 60 years of Congress's power under the Commence Clause."

This is a core issue of importance to every American - and Specter is right to raise it.



Hot-button issues like abortion, flag-burning, school prayer, homosexual rights, and the like, are of great concern to only some subset - albeit, in some cases, a large subset -- of Americans. In contrast the issue of the scope of the powers of the U.S. Congress under Article I, section 8 of the Constitution - which gives Congress the power to "regulate Commerce with foreign Nations, and among the several states" -- has significance for every American.

While talk of the Commerce Clause may glaze the eyes of non-lawyers, it shouldn't -- for this Constitutional provision is the foundation of a wide range of laws protecting the environment, civil rights, consumers, labor, and public health and safety. Pull this cornerstone out, as many conservatives would like to do, and the federal government will be returned to its late-Nineteenth-Century status of being unable to effectively protect Americans.

Commerce Clause Rulings Of The Rehnquist Court

Chairman Specter raised two specific cases in his letter to Judge Roberts: The Supreme Court's 1995 decision in United States v. Lopez, and its 2000 decision in United States v. Morrison. These holdings have brought great confusion not only to lower federal courts, but also to the Congress - which is now unclear on the scope of its own powers.

Historically, the Supreme Court had held that Congress could regulate local activities only if the activity "directly" affected interstate or foreign commence. That less-than-precise standard was, notoriously, used by the Supreme Court to block President Franklin D. Roosevelt's efforts to legislatively stabilize the depressed economy.

Accordingly, that standard gave way in 1937 to a new standard, the ruling in NLRB v. Jones & Laughlin. As described by Chief Justice Rehnquist in Morrison, NLRB gave Congress "considerably greater latitude in regulating conduct and transactions under the Commerce Clause than our previous case law permitted."

More than sixty years passed, during which stare decisis reigned, and precedent was respected. And then, in 1995 and 2000, with Lopez and Morrison, the Court abandoned sixty years of precedent - as Chairman Specter noted in his letter - to attempt a return to the standard that would have left FDR hamstrung, and the nation mired in a Depression.

In Lopez and Morrison, the modern Rehnquist Court all but declared that Congress could not regulate local matters, under the Commerce Clause, if those matters had no "economic" value. Implicit in this ruling is the judicial myth that non-economic matters do not impact interstate commerce. But as common sense would suggest, they do: There is no way to crisply separate business out from the rest of the life of the nation.

Morrison Shows The Problems This Jurisprudence Causes Congress

First, let's take a look at Morrison. In 1994, after four years of hearings, Congress enacted the Violence Against Women Act (VAWA). Congress acted based on findings that were supported by overwhelming evidence elicited during the hearings.

For example (as a lower court government brief summarized those findings), Congress found that violence was the leading cause of injury to women from ages 15 to 44; that in 1991, on a weekly average, over 2,000 women were raped; also every week 90 women were murdered with 9 out of ten being killed by men; that women in the United States are three times more likely to be raped than European women; that approximately four million women are battered every year by husbands or partners; and that three out of four women in America will be victims of a violent crime in their lifetime.

Congress expressly found that this violence had a serious impact on interstate commerce, not to mention the nation's economy. Violence deters women from taking jobs, using public transportation, and otherwise traveling interstate. Congress estimated the cost of the violence to be between $5 to $10 billion per year, because of added health care and criminal justice expenses, and between $3 to $5 billion a year, because of employment absenteeism.

In 1995, by a 5-4 holding, the Morrison Court ruled that Congress, in passing VAWA, had exceeded its powers under the new reading of the Commence Clause developed in Lopez. Delivering the opinion for the majority, Chief Justice Rehnquist wrote that "a fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case." And he reasoned that in-state criminal conduct is not commercial activity, and thus does not fall within Congress' Commerce Clause power -- regardless, it seems, of that criminal conduct's impact on interstate commerce and the economy. He adopted the same rationale for violence against women.

It is difficult to imagine how Congress could have made a showing stronger that it did, in support of VAWA. But it seems a stronger showing was required under this emerging Commerce Clause jurisprudence.

As a result of Lopez and Morrison, existing federal civil rights, public safety and other laws that rely on the Commerce Clause may now also be vulnerable to being held unconstitutional by the High Court.

This is relevant to Judge Roberts's confirmation hearing because in a recent ruling by the DC Circuit Court of Appeals, Judge Roberts indicated that he thought that Lopez and Morrison, as broad as they are, ought to have been interpreted even more broadly - and the Commerce Clause, even more narrowly .

Judge Robert's Gratuitous Opinion In Rancho Viejo v. Norton

Shortly after arriving on the federal appellate bench, Judge Roberts issued a gratuitous four-hundred and fifty word dissent to the denial of rehearing in Rancho Viejo v. Norton. He did so to make the point that the majority holding was, in his view, "inconsistent with the Supreme Court's holdings in United States v. Lopez, and United States v. Morrison."

Although this dissent does not say how Judge Roberts would have decided the case, it certainly suggests that he views the Commerce Clause extremely narrowly. The only judge who similarly dissented was the most conservative member of that court, Judge Sentelle.

To appreciate Roberts's position it should be noted that dissents to denials of rehearing are rare in the DC Circuit. There had already been a panel decision in the case; the full court had voted to reject rehearing, and in the view of seven other judges, no more needed to be said. More importantly, these seven other judges -- including three conservative Republican-appointees, namely Judges Ginsburg, Henderson and Randolph -- rejected this narrow reading of the Commerce Clause.

In short, Chairman Specter has good reason to want to quiz this high court nominee on his Commerce Clause jurisprudence. And if anyone can pose those questions in a manner to avoid the so-called "Ginsburg Rule," it is Senator Specter.

ABA's Canon 5: Why The "Ginsburg Rule" Is Non-Binding

The conservative spin apparatus, fully engaged to win confirmation for Judge Roberts, is widely circulating an OpEd piece written by former Attorney General Edwin Meese III and Todd Gaziano of the Heritage Foundation. It reminds readers that in 1993, when Senator Joseph Biden of Delaware chaired confirmation hearings for Supreme Court nominee Ruth Bader Ginsburg, Biden instructed his committee colleagues not to ask questions about "how [Judge Ginsburg] will decide any specific case that may come before her."

Judge Ginsburg - who was then on the DC Circuit Court of Appeals, just as Judge Roberts is today -- refused to answer a number of questions about matters she believed would come before her as a Supreme Court Justice. She was confirmed by a vote of 93 to 3.

Meese and Gaziano suggest the same rules that applied to Ginsburg, should also apply to Judge Roberts.

Senator Biden based his position on, and Judge Ginsburg found her shelter in, Canon 5 of the American Bar Association's Model Code For Judicial Conduct. Canon 5(d)(i) states: A candidate for a judicial office (a "Candidate" is defined as a person seeking selection for judicial appointment) shall not: with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office.

As a close reading of this Canon shows, it only applies to "pledges, promises, or commitments" regarding "cases, controversies, or issues that are likely to come before the court." Thus, on its face, it does not preclude a nominee from making broad statements about the law, so long as they are not "pledges, promises, or commitments."

A narrower interpretation that would have this preclusive effect has been added in the "Commentary," but it is advisory only - which is telling. The ABA's commentary states that this Canon "prohibits a candidate for judicial office from making statements that commit the candidate regarding cases, controversies or issues likely to come before the court." This prohibition on statements, however, is broader than the Canon itself. (The commentary also notes that Canon 3 precludes sitting judges from discussing matters before them.)

The Ginsburg Rule, then, is binding on no one. Supreme Court confirmation proceedings are purely political, and the chairman can run his committee much as he sees fit.

Accordingly - and rightly so -- in submitting specific questions to Judge Roberts, Chairman Specter has made clear that he believes the nominee must respond. Judge Ginsburg was able to refuse to answer questions not because of Canon 5, but rather because the Senate Judiciary Committee permitted her to do so. Had a majority insisted she respond, she would have had to respond, or risk not having her nomination reported out of the committee.

If Judge Roberts fails to respond to Chairman Specter's questions, he will be playing a dangerous game of stonewalling. There is nothing in the ABA Canons that precludes him from explaining his Commerce Clause jurisprudence.

Thus, if Roberts thinks the U.S. Congress is relatively powerless under the Commerce Clause provision, he is free to say so - and it is only fair that he should. If that is his thinking, then the U.S. Senate can decide if it wants to diminish its powers by placing Judge Roberts on the High Court.
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John W. Dean, a FindLaw columnist, is a former counsel to the president.

Re: Specter Presses Roberts on His Commerce Clause Views


Our federal government is supposed to be a government of limited powers. If the power was not delegated to the federal government by the Constitution--it doesn't have the power.

See the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The federal government does not have general police powers to curtail crime. That's why the Supreme Court struck down the Gun-Free School Zones Act (GFSZA) at issue in the Lopez case.

However, as soon as the GFSZA was declared unconstitutional, Congress amended the Act to provide a "jurisdictional nexus" to give Congress power under the Commerce Clause to regulate the possession or discharge of a firearm in a school zone. The possession or discharge of any firearm that has "moved in or otherwise affects interstate commerce" is a federal crime. Accordingly, all the concerns the Court expressed in the Lopez case with respect to the federal government's regulation of crime vanished into thin air. The GFSZA is no longer unconstitutional on its face. In any particular prosecution, so long as the government can connect the firearm to interstate commerce, the GFSZA is not unconstitutional as applied. Pretty much EVERY SINGLE firearm in existence or its component parts have, at one time or another, moved in interstate commerce.

The Commerce Clause is "Congress can do anything it wants to do Clause" so long as Congress uses the magic language.

With respect to the statute at issue in the Morrison case, the Violence Against Women Act of 1994, Congress provided women with a federal forum to prosecute their claims for civil damages against their abusers. The legislation lacked the requisite jurisdictional nexus to interstate commerce. Merely reasoning that crime affects the national economy is not enough for Congress to punish criminals under the Commerce Clause. This would turn the Commerce Clause into a general police power without any limitations.

Thus, I have NO SYMPATHY for Senator Arlen Specter's concerns about Congress's power under the Commerce Clause. The Courts have afforded great deference to Congress and, accordingly, the clause has been so expanded in application as to impose no practical limits on Congress. The constitutional glitch articulated in the Lopez case was easily resolved with a mere amendment to the GFSZA. Likewise, if Congress wants to provide federal remedies to persons who have suffered gender-based violence, then Congress needs to place the appropriate jurisdictional nexus language in the statute itself to justify the use of its Commerce Clause powers.

In short, Congress could make smacking someone over the head with a can of speghetti sause a federal crime . . . so long as the can in question moved in or otherwise affected interstate commerce.

Judge Roberts may well be the next Chief Justice of the Supreme Court. How likely is it that he'll be confirmed?

More likely than not, Judge Roberts will be confirmed and will become the next Chief Justice of the United States Supreme Court.

Debra


I agree that Roberts will be confirmed as Chief Justice. He's a lot better than some of the other judges on Bush's short list although he wouldn't be my choice as I would prefer a political moderate.

It is unfortunate that the opposition to Roberts is based largely on abortion, gay marriage, prayer in schools, etc. Despite all the rhetoric, the Republican Party would not want to outlaw Roe vs Wade because it is too valuable a wedge issue tool at election time which assures them the support of their religious right base. The Court has resisted the temptation to tamper with free speech and the separation of church and state based on a long history of Court decisions.

I think the biggest risk in having another conservative on the Court are cases involving the Commerce Clause. It's the economic issues under the umbrella of the Commerce Clause that concerns me.

I think Bush's second nomination to replace Justice O'Connor is more critical than that of Roberts.

BBB

I have to agree with BumbleBee on this one, Justice O'Connor's replacement seems to be the interesting story to me.

Debra Law
DebraLaw, the biggest problem I find with Judge Roberts is that he has a record of being an ideological pro-business judge.

Add that to George W. Bush's pro-business Executive Branch, and one can plainly see the threat to the Common Good. The legislative branch is dominated by pro-business republicans.

Who will protect the interests of the Common Good of citizens?

BBB