The Weakness Of Environmentalist Use Of The Commerce Clause

While most of the criticism of John Roberts has focused on his views on abortion, the environmental blogosphere has been tossing around the question of his views of the Commerce Clause. Most federal environmental legislation is justified on the grounds that it constitutes regulation of interstate commerce. Many conservatives have challenged the constitutionality of these laws based on a narrower reading of the commerce clause.

The main evidence that Roberts is among those conservatives comes from a dissent he wrote arguing that the EPA has no right to extend Endangered Species protection to a toad whose range does not cross state lines. Whether this means Roberts would support sweeping reinterpretations of the commerce clause is unclear, but certainly he would be likely to narrow the margins of the environmental regulations that the federal government is entitled to put in place.

This would be a straightforward case of opposing an anti-environment judge -- except that Roberts' reasoning is hard to argue with on procedural grounds. Protecting a Californian toad is only very tenuously related to the idea of interstate commerce. If the toad can be covered by the commerce clause, then pretty much anything can, and so the idea of ennumerated powers goes out the window. Some environmental law -- such as the regulation of transboundary pollution -- fits easily within a reasonable reading of the words "interstate commerce," and the clause's vision of the federal government as mediator among the states.

I support the basic body of environmental law in place in this country. And I think that any modern government ought to have the power to make such laws. I think most Americans would agree that environmental laws are a legitimate function of the federal government. If we were writing a new constitution from scratch, I think we would most likely be able to get a clause in it explicitly granting Congress the power to pass environmental laws.

The problem, though, is that the constitution that we actually have is rather more conservative than the body of laws that rest on it. For most of the past half-century we have been lucky enough to have a judiciary liberal enough to recognize the moral right to environmental regulation, and to treat the constitution as a tool for achieving justice rather than as a constraint on pursuing justice. The courts cut us enough slack in interpreting the constitution that no amendment was necessary to formally expand the government's powers. But by taking that quick and easy route, we made ourselves dependent on a body of precedent advancing a sometimes very strained view of the commerce clause. That basis is vulnerable to a shift to a judiciary with a substantive preference for less environmental law and a willingness to take a narrower view of what the commerce clause entails in order to achieve that.

This is a persistent problem for those who go too far in blurring the line between what the constitution should say and what it does say. The words of any document will always lack the sharp precision implied by facile theories that you should just "look at what it says" -- and all the more so for a document as old and as general as the constitution. But at the same time, words do have central as well as more peripheral senses. Insisting that a right is already in the constitution can be effective in the short run. But the more the derivation relies on peripheral meanings, the more vulnerable it is to changing interpretations. The farther out you are from the central meaning of a clause, the more likely that a change in the size or shape of the boundaries someone will draw on its meaning will overturn your interpretation.