Replies

Over the past decade, the Supreme Court has struck down an unprecedented number of federal statutes, most notably several designed to protect the civil rights of Americans, as beyond Congress’s power under Section 5 of the Fourteenth Amendment, for example, Flores V. City of Boerne, 117 S. Ct. 2157 (1997), Kimel v Florida Board of Regents, 120 S. Ct. 631 (2000), and Board of Trustees v. Garrett, 19 S. Ct. 2240 (1999). The Supreme Court has also recently struck down statutes as being outside the authority granted to Congress by the Commerce Clause, such as in the case of U.S. v. Lopez, 115 S. Ct. 1624 ((1995) or U.S. v. Morrison, 120 S. Ct. 1740 (2000). I am hopeful that the Court’s recent decision in Gonzales v. Raich, 125 S. Ct. 2195 (2005) signals a turn away from the diminishing of the authority of Congress to legislate to protect the American people.

In light of your advocacy for judicial restraint and deference to Congress, what is your understanding of the scope of congressional power under Article I of the Constitution, in particular, the Commerce Clause, and under Section 5 of the Fourteenth Amendment?

Response: As the question indicates, on the of the Court’s most recent pronouncements with respect to the Commerce Clause came last year in Gonzales v. Raich. There the Court made clear that “Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce is firmly established.” The precedents of the Supreme Court addressing the Fourteenth Amendment have likewise repeatedly demonstrated that Congress’s authority to enact legislation pursuant to Section 5 is very broad. If confirmed, I would enforce these Supreme Court rulings fully in cases that may come before me, applying the same judicial restraint and deference to congressional judgement in these arenas as I would in any other.

2006 confirmation hearing, page 42-43
http://online.wsj.com/public/resources/documents/2016_0131_gorsuch_confirmation.pdf