PEOPLE HAVE BEEN LOOKING FOR THE DAMNING ROBERTS QUOTE, and I’ve found it:
SCHUMER: OK. Let me ask you, then, this hypothetical: And that is that it came to our attention, Congress’, through a relatively and inexpensive, simple process, individuals were now able to clone certain species of animals, maybe an arroyo toad. Didn’t pass over state lines; you could somehow do it without doing any of that. Under the commerce clause, can Congress pass a law banning even noncommercial cloning?
ROBERTS: I appreciate it’s a hypothetical, and you will as well, so I don’t mean to be giving bindings opinions. But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce. Obviously if you were successful in cloning an animal, that’s not going to be simply a local phenomenon. That’s going to be something people are going to…
SCHUMER: We can leave it at that. That’s a good answer, as far as I am concerned.
Under this analysis, everything is subject to regulation under the commerce power. That it’s a good answer as far as Schumer is concerned doesn’t surprise me, but that it’s the answer of a Bush nominee to the Supreme Court is damning, if not terribly surprising — for the Bush Administration. Fair-weather Federalism, indeed. More here.
What’s more, it seems that he’s answered my question number five in the affirmative.
UPDATE: Reader Martin Albright asks if this means that I disagree with Wickard v. Filburn. Possibly — but Wickard stands for the proposition that instances of economic activity that impacts a scheme of pervasive economic regulation can be aggregated to find an impact on interstate commerce sufficient to justify Congressional regulation. Roberts seems to be saying that anything can be aggregated to find an impact on interstate commerce, and that Congress can even nip it in the bud by outlawing it in advance to ensure that there never will be such an impact. This seems rather extreme to me, perhaps even going beyond Raich.
In fact, it seems as if Roberts is endorsing the Schumer view of the commerce power that Jonathan Adler was deriding just the other day over at NRO’s “Bench Memos” site. Perhaps Roberts misspoke, but he’s not really the misspeaking type, is he?
MORE: Hugh Hewitt says not to worry, but I am uncomforted.
MORE STILL: I remain uncomforted by this discussion.