Sen. Cornyn's Daily Question for Judge Sotomayor - Question 5

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Sen. Cornyn's Daily Question for Judge Sotomayor - Question 5

Are there any limits to the power of Congress under Article I, Section 8 of the Constitution?

Explanation: It is axiomatic that the federal government is a government of limited power. See Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). In our federal system, the states retain the general lawmaking power. The federal government only has the powers enumerated in Article I, Section 8. In recent years, however, the Supreme Court has interpreted the power to "regulate Commerce with foreign Nations, and among the several States" far beyond its natural meaning. Some Justices seem to believe that the power to regulate interstate commerce essentially makes the federal government a government of unlimited power.

Judge Sotomayor has ruled on a number of challenges claiming that federal statutes exceed Congress's power under Article I, Section 8, and specifically that they exceed the Commerce Clause power. As far as I can tell, Judge Sotomayor has never ruled or even suggested that any statute is beyond Congress's power. She voted to uphold the federal statute in each case without apparent misgivings. See, e.g., United States v. Iodice, 525 F.3d 179 (2d Cir. 2008) (rejecting challenge to 18 U.S.C. § 844(i)); United States v. Giordano, 442 F.3d 30 (2d Cir. 2006) (rejecting challenge to 18 U.S.C. § 2425); United States v. Harris, 358 F.3d 221 (2d Cir. 2004) (rejecting challenge to 18 U.S.C. § 2252A(a)(5)(B)); United States v. Gaines, 295 F.3d 293 (2d Cir. 2002) (rejecting challenge to 18 U.S.C. § 922(g)(1)).

By itself, this is not necessarily cause for concern. Judge Sotomayor's record on the Commerce Clause is limited. The disputes that have come before her were only a very limited subset of cases. At the same time, the limited scope of the federal government's power is so fundamental to our federal system that it naturally raises the question of whether Judge Sotomayor believes that there are any limits to the power of Congress under Article I, Section 8 of the Constitution.

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