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Alito's Potential Impact on States' Rights Issues

RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, host:

And I'm Steve Inskeep.

An important group of senators meets today to discuss the nomination of Samuel Alito to the US Supreme Court. The so-called Gang of 14 worked out a deal earlier this year that averted a Senate showdown over judicial filibusters. If they stay together, they can block a nomination or push it through. Now there are signs of division in that group. Two of the Republicans involved say they would vote to stop a Democratic filibuster of a confirmation vote.

MONTAGNE: This week, we are looking at some of the issues Judge Alito would face if he were confirmed--today, the balance between federal power and states' rights. As a judge on the 3rd Circuit Court of Appeals, he has a record of siding with the state. Michael Gerhardt is a professor of constitutional law at the University of North Carolina-Chapel Hill, and he joins me now.

Good morning.

Professor MICHAEL GERHARDT (University of North Carolina-Chapel Hill): Good morning.

MONTAGNE: Let's get real quickly to some basics. What kinds of legal issues place the states at odds with the federal government?

Prof. GERHARDT: There are an extraordinary range of issues that place states in conflict with the federal government. These issues can range anywhere from federal environmental laws to federal laws that seek to directly regulate the states or--and, for example, when the federal government does something, anytime the federal government passes a law that either takes something away from a state, precludes the state from continuing to regulate it--or sometimes the federal government will directly regulate the state in trying to direct it what to do.

MONTAGNE: And what then is the philosophy or the rationale, if you will, for defending states' rights, you know, consistently?

Prof. GERHARDT: The rationale is, basically, that you would assume that, given any ambiguities in the Constitution, that you would read those ambiguities against the federal government. So as the federal government is not given any power clearly over something, you would read the Constitution as reserving that power in the states and not giving it to the federal government. And if you have that mind-set, or you have that premise, when you approach the Constitution, then you would, I think, read it in much the same way that Judge Alito has read it, to favor states in any case in which it's not clearly one that gives the federal government power over the states.

MONTAGNE: So let's talk about a couple of specifics. What sorts of decisions--or give us one example of a decision that he's made involving states' rights.

Prof. GERHARDT: Well, one of the, I guess, most talked about cases is one in which he's dissented to a federal law that was trying to regulate machine guns, trying to restrict machine guns. And Judge Alito said, in his dissent, he didn't feel that the federal government had the authority to restrict the sale or ownership of machine guns. And when he reached that judgment, he said that this is really something left to the states to regulate, so states could restrict the sales, perhaps, but not the federal government.

MONTAGNE: And it had to do with commerce. I mean, it happened to involve machine guns, but it had to do with commerce laws.

Prof. GERHARDT: Yes, yes. Congress had passed a law under its power to regulate interstate commerce, to restrict ownership or sales of machine guns, and so Judge Alito read that power of Congress to regulate interstate commerce quite narrowly.

MONTAGNE: So now that's one example, but generally speaking, could he change the court on this issue? In other words, was Sandra Day O'Connor the swing vote in these issues?

Prof. GERHARDT: She was sometimes the swing vote in these issues, but sometimes the swing votes in these cases actually were both Chief Justice Rehnquist and Justice O'Connor, and, of course, these are the two justices being replaced. So if Chief Justice Roberts--and if Judge Alito gets confirmed--vote differently than those other two justices, then we might see quite different results. For example, in one case, the federal government passed the law called the Family Leave Act, which sought among other things to regulate the states and how they basically--the policies they gave their workers with regard to leaving work for family reasons. Judge Alito, in that case, felt that the federal government didn't have the power to direct the states, but if--with two new justices, that case could come out differently.

MONTAGNE: Thank you very much for joining us, Professor Gerhardt.

Prof. GERHARDT: Thank you very much.

MONTAGNE: Michael Gerhardt is a law professor at the University of North Carolina-Chapel Hill. Transcript provided by NPR, Copyright NPR.