Schumer as Torquemada II

More questions from Schumer to Judge Roberts, courtesy NRO, and answers from The Monk in bold.

2. First Amendment and the Establishment Clause:

Under the Establishment Clause, what, if any, is the appropriate role of religion in Government? Undefined by the Establishment Clause, that's the flaw in your thinking, Senator.

-- Must the Government avoid involvement with religion as a whole, or is the prohibition just on Government involvement with any specific religion? The Establishment Clause is designed to prevent the favoring of one religion over any other.

-- Is there a difference between religious expression in Government buildings, documents, and institutions and Government spending on private, faith-based initiatives? Man, this Q is more broad than an aircraft carrier's landing deck. And the answer is everything depends on intent.

-- What do you see as the Constitutionally protected or limited role of faith-based groups in Government-funded activity? In Government institutions? Roberts cannot answer this but as a policy matter as long as there is no advancement of a particular religion, the Establishment Clause is unaffected.

Specifically:

-- In the two cases the Supreme Court decided on the Ten Commandments recently, a display of the Commandments inside a Courthouse was found unconstitutional, while a statue of the Commandments on the grounds of a state capitol was deemed acceptable. Do you agree with the distinction the Court drew between Van Orden v. Perry and McCreary Country v. ACLU (2005)? In your view, are these decisions consistent with each other? No and no.

-- What is your view of the Supreme Court's opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game? Ridiculous. The government cannot promote a religion, if the kiddies want to, that's different. The logic of having something on public school grounds equal a public school ACT is simply poor.

3. Commerce Clause:

Beginning in 1937, when it upheld the National Labor Relations Act, the Supreme Court has granted Congress great latitude in passing laws under the Commerce Clause. The Court has upheld a wide range of federal laws, including those that regulate labor standards, personal consumption of produce, racial discrimination in public accommodations, and crime. In the last ten years, however, the Supreme Court has shifted course, doing something it had not done in sixty years: striking down acts of Congress on Commerce Clause grounds.

-- Do you agree with the trend towards striking down laws on this basis? What trend? That's a dopey question -- if Congress hadn't gone so far off the reservation, the S. Court would not have slapped it.

-- What do you believe is the extent of Congress's authority to legislate under the Commerce Clause? Another ridiculous question -- Judge Roberts can go get a law review article and read it into the record to kill Schumer's question time.

-- Can Congress regulate local trade in a product that is used nationally? Note the vague phrasing -- what's local and what's national? The Constitution deals with interSTATE, not interlocality transactions. Dallas to El Paso is not a local transaction, but Hoboken to Manhattan is.

-- Can Congress regulate labor standards for states and cities under its Commerce Clause power? Good gosh, is there nothing you people don't want to touch? Answer is yes if it's interstate and doesn't violate the Contract Clause.

-- How closely connected must the regulated action be to interstate commerce for Congress to have the authority to legislate? To me, pretty directly involved.

-- Where would you look for evidence that Congress is properly legislating under its Commerce Clause authority? Do you rely exclusively on the text of the legislation? Do you look at the legislative history? Do you consider the nature of the regulated activity? No, yes and yes.

-- What is the extent of the limitations imposed on state regulation by the Commerce Clause? This is well-defined under the "Dormant Commerce Clause" doctrine.

Specifically:

-- Do you agree with the Court's decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act because education is traditionally local? Is there any circumstance under which Congress could regulate activities in and around schools using its Commerce Clause authority? Yes to the first Q. For the second, you're bound to try something and you'll probably win 3-4 votes from the Nine.

-- Do you agree that it is the Commerce Clause that allows Congress to prohibit racial discrimination in public accommodations, as the Court held in Heart of Atlanta Hotel v. United States (1964)? No, this should have been one for the Privileges and Immunities Clause of the Fourteenth Amendment but the Supreme Court didn't overturn the Civil Rights Cases and instead worked around them.

Still more, we're not even halfway through!