Friday, January 13, 2006

ALITO: commerce clause, lopez, rybar

KYL: There was a case that was mentioned by a couple of my Democratic colleagues that I'm sure will be discussed further.

But I thought I'd give you an opportunity to talk about it because it certainly seemed to me to be a case in which you were trying to apply Supreme Court precedent, the precedent being the Lopez v. United States case; a case, by the way, in which I note that it was one of those decisions that Justice O'Connor was in the majority, a 5- 4 decision in which her position could be characterized as the swing vote.

Now, you, in United States v. Rybar, agreed with Justice O'Connor in the way that law should be applied relative to intrastate possession of a weapon.

The Lopez case dealt with a congressional act that said that weapons should not be possessed near schools. The court struck that down, saying that that went beyond the commerce clause capability of commerce to legislate in matters of interstate commerce.

In Rybar, what was the issue, you dissented.

By the way, one of the reasons why this case is interesting to me because the 9th Circuit Court of Appeals, again, which is my circuit, has subsequently ruled -- and this is not a conservative court in most people's estimation -- recently agreed with your dissent in a case called U.S. v. Stewart (ph), a 2003 case in which the court overturned the defendant's conviction under the very same statute, holding that the law exceeded Congress's commerce powers.

So it seems to me that it would be hard to argue that your position is, per se, unreasonable. But could you describe in your own words?

ALITO: Well, my position in Rybar was really a very modest position. And it did not go to the question of whether Congress can regulate the possession of machine guns.

In fact, I explained in the opinion that it would be easy for Congress to do that in a couple of ways that differed from the way in which it was done in Rybar.

The statute in Rybar was very similar to the statute that was at issue in Lopez. In fact, I think they are the only two federal firearms statutes that have been cast in that mold.

They simply prohibited the possession of firearms without either congressional findings concerning the effect of the activity on interstate commerce or a jurisdictional element.

And I knew from my experience as a federal prosecutor that most of the federal firearms statutes have a jurisdictional element right in the statute. And what that means is that when the prosecutor presents the case in court, the statute that's used most frequently is the statute that makes it a crime for someone who has been convicted of a felony to possess a firearm.

In that case, when the prosecutor presents the case in court, the prosecutor has to show that the defendant has been convicted of a felony and that the firearm in question had some connection with interstate commerce.

Under Supreme Court precedent, a case called Scarborough, all that's necessary is to show that the firearm at some point in its history passed an interstate or foreign commerce: it was manufactured in one state and then later turned up in another state or manufactured in a foreign country and brought to the United States.

From my experience, this was never a practical problem and this was how all the federal firearms statutes had been framed.

ALITO: But for whatever reason, the statute in Lopez and the statute in Rybar were lacking that jurisdictional element.

So an easy way in which Congress could regulate the possession of a machine gun would be to insert a jurisdictional element. And as I just pointed out, in my experience as the U.S. attorney in New Jersey, that was never a practical problem.

The Supreme Court in Lopez said that there were three reasons why there was a problem with the statute there.

And that case had been decided the year before. And it was my obligation, as a lower court judge, to follow it.

The first was that it involved what the court characterized as a noncommercial activity, and that was the possession of a firearm. And, of course, that was the exactly the same activity that was at issue in Rybar.

The second was the absence of a jurisdictional element, and there was no jurisdictional element in either statute.

And the third was the absence of a congressional finding connecting the activity that was being regulated within interstate commerce.

And I pointed out in my opinion that I would have viewed the Rybar case very differently if there had been a congressional finding or if the Justice Department, in presenting its argument to us, had been able to point to anything that showed that there was a substantial effect on interstate commerce, which is what the Supreme Court says is required.

KYL: So this is one of those situations in which, if the result was not was intended, you were willing to point out in your decision what Congress could relatively easily have done to get the result that it appeared that Congress wanted to achieve?

ALITO: That's exactly correct.

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