THERE IS perhaps no area of American constitutional law as important and as in flux at the Supreme Court as the balance of power between the federal government and the states. Judge Samuel A. Alito Jr. does not have extensive writings on the subject as a lower court judge, but he has written two opinions that liberal groups cite as evidence of the grave danger his confirmation would carry. The two cases deal with different aspects of the broad question of what the court quaintly calls "our federalism." One involves the scope of Congress's power to regulate interstate commerce, the other the breadth of state immunity from lawsuits for money under the Constitution's 11th Amendment. In both cases, Judge Alito adopted states-rights ground from which later Supreme Court opinions seemed to turn away. Yet in our view, his opinions differ considerably in their merit.
Criticizing Judge Alito for his 11th Amendment ruling seems unjust. In an unfortunate string of cases starting in the mid-1990s, the Supreme Court breathed new life into the sovereign immunity of the states, greatly limiting Congress's ability to allow lawsuits for money against them. After the court nixed lawsuits under federal age and disability discrimination laws, the question arose as to whether its logic also applied to the Family and Medical Leave Act -- which guarantees workers the ability to take medical leave from their jobs. Judge Alito, writing for a unanimous panel in 2000, held that it did, at least for one provision. This seemed at the time like a natural consequence of the damage the Supreme Court had done; indeed, other circuits ruled the same way. But then, the Supreme Court backtracked, unexpectedly distinguishing a different provision of the leave act from the previous cases. This move gives opponents certain rhetorical ammunition against Judge Alito. But it actually says more about the inconsistency of the high court's own approach to the 11th Amendment than it does about any of the lower-court judges caught in its bait-and-switch.
By contrast, his dissent in a constitutional challenge to a federal machine gun ban is troubling. In U.S. v. Lopez in 1995, the Supreme Court struck down a law forbidding guns within school zones as an invalid exercise of Congress's power to regulate interstate commerce. The basic idea was that the law attacked activity that had nothing to do with commerce. This decision was right, but its logic is dangerous if taken too far. So much of modern federal policymaking relies on a robust understanding of the commerce power that even minor retrenchments could doom important federal laws.
In the wake of Lopez, the U.S. Court of Appeals for the 3rd Circuit upheld the federal ban on machine gun possession, but Judge Alito would have struck it down, arguing that the law was indistinguishable from the one the court invalidated in Lopez. No other circuit that considered the matter agreed with him, and for good reason. The machine gun law was much more obviously a regulation of a market than the school zones statute, which regulated not what guns people bought or possessed but where they walked with them. The machine gun law banned both transfer and possession of machine guns -- the ban on possession being an effort to criminalize the demand side of the gun market, while the transfer ban criminalized the supply side. Judge Alito's desire to extend the logic of Lopez to such a law seems to indicate an overly restrictive approach to the commerce clause -- though he did note that Congress could fix the statute quite easily. Senators will need to satisfy themselves that he does not envision a dramatic curtailing of national power.