More on Alito

Many bloggers are tracking the hearings on the nomination of Samuel Alito to the United States Supreme Court.  For contributions by the LawProf blog network, check out these representative comments. 

In his opening statement, New York's Senator Charles Schumer raised concerns about Alito's views on federalism, citing Alito's dissent in U.S. v. Rybar, 103 F.3d 273 (3rd Cir. 1996). 

That case involved an appeal by a defendant charged with violating federal statutes prohibiting sale of machine guns, pursuant to Congress's Commerce Clause authority.  The majority upheld the statutes as adequately grounded in that authority, finding that explicit legislative findings were not necessary, and that sale of machine guns (even in state) substantially affected the flow of commerce and had an impact on violent crime.  Alito focused on the application of United States v. Lopez, 514 U.S. 549 (1995) which had struck down the Gun-Free Schools Zone Act.  He contended that the machine gun legislation could only rest on a finding that sale of machine guns in state "substantially affects the flow of interstate commerce."  The majority had offered two theories in upholding the legislation:  Congress had rationally concluded that (a) purely intrastate possession of machine guns had a substantial effect on the interstate machine gun market; and (b)  the purely intrastate possession of machine guns increased the incidence of certain crimes.  In Alito's view, there were no explicit Congressional findings of substantial impact on interstate commerce and no empirical evidence in support of that proposition.   The majority had characterized Alito's view as "requir[ing] either Congress or the Executive to play Show and Tell with the federal courts," a characterization Alito roundly rejected.

Expect to see more questions about federalism in the ongoing confirmation hearings.