WASHINGTON -- Sen. Arlen Specter, the chairman of the Senate Judiciary Committee, has not signed on to a request by Democrats on the panel that the Bush administration disgorge documents from Judge John G. Roberts Jr.'s tenure as deputy solicitor general in the first Bush administration. But the Pennsylvania Republican has made common cause with Democrats on another issue associated with Roberts' nomination to the Supreme Court: the judge's views of Congress' power under the Commerce Clause of the Constitution.

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

It's not surprising that Democrats -- and those Republicans like Specter who believe in a muscular federal government -- would focus on Roberts' attitude toward the Commerce Clause. But even if a Justice Roberts and four colleagues saw things Specter's way, there could be a cloud in the silver lining dealing with another issue important to Sen. Specter: abortion rights.

In an Aug. 8 letter, Specter warned Roberts that he planned to ask him about two decisions in which the Supreme Court has second-guessed Congress' power to legislate broadly under Article I, Section 8, of the Constitution, which gives the national legislature authority "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

In the decisions mentioned by Specter, the so-called "Federalist Five" on the high court invalidated provisions of two laws enacted under Commerce Clause authority. In U.S. v. Lopez (1995), the court struck down a law outlawing the possession of guns near schools. In U.S. v. Morrison (2000), the same 5-4 majority overturned a provision of the Violence Against Women Act empowering rape victims to file damage suits in federal court.

Specter noted that in the Morrison case, Chief Justice William H. Rehnquist, writing for the majority, had questioned Congress' "method of reasoning" in concluding that violence against women affected the national economy.

Specter fumed: "To this senator, who has labored through 25 years of intense legislative hearings and fact-finding, plus prior public service and experience in the real world, my immediate reaction is to wonder how the court can possibly assert its superiority in its 'method of reasoning' over the reasoning of the Congress."

More than institutional umbrage figures in dissatisfaction over the Lopez and Morrison decisions. When the Supreme Court upheld the constitutionality of the 1964 Civil Rights Act's ban on discrimination in public accommodations, it accepted the government's argument that the law was a proper exercise of Congress' power over interstate commence.

In Heart of Atlanta Motel v. United States, decided only a few months after passage of the Civil Rights Act, the court upheld the application of the Civil Rights Act to an Atlanta motel that had refused to allow African-Americans to stay there. In doing so, the court noted that 75 percent of the Heart of Atlanta Motel's guests came from out of state, and that it was located near two interstate highways.

Even at the time, the government's citation of the Commerce Clause was regarded as an argument of convenience, if not a legal fiction. In passing the Civil Rights Act, Congress obviously was motivated more by the immorality of racial discrimination than by its effect on the economy, and many of the motels and restaurants that were required to integrate under the law did not have a significant interstate clientele.

So the Commerce Clause argument was a stretch, but Congress and the Justice Department under Attorney General Robert F. Kennedy had done their best with the constitutional language and Supreme Court precedents available to them. And they won.

Fast forward to June 6 of this year when the Supreme Court in a 6-3 decision upheld Congress' right to outlaw the use of marijuana even in states, like California, where use of the drug for medical purposes was legal and even in situations in which the marijuana was grown entirely within a state.

The decision fractured the Federalist Five, with Justices Anthony Kennedy and Antonin Scalia joining the court's four liberals in upholding Congress' authority under the Commerce Clause to regulate what Justice John Paul Stevens' majority opinion called "both lawful and unlawful drug markets." As with the Civil Rights Act, however, it's disingenuous to suggest that Congress' interest in outlawing marijuana was primarily economic; the real agenda had to do with health and morals.

Now think: What other issue dealing with health and morals might a conservative Congress want to pronounce upon even if states took a more liberal view? In a speech last month at a convention of the American Constitution Society, a liberal group of lawyers and law students, Harvard Law Professor Laurence Tribe pointed out that if a future Supreme Court overruled or weakened the Roe v. Wade ruling legalizing abortion, the issue would not simply return to the states, as is commonly assumed. Congress, Tribe warned, also could legislate against abortion.

"The transaction between an abortion provider and a patient is an economic transaction," Tribe noted, adding that a rollback of Roe by the Supreme Court coupled with the expansive interpretation of Congress' Commerce Clause power in the medical-marijuana decision could allow a conservative Congress to "ban any abortion procedure it wants."

In the medical-marijuana case, some liberals became what I have called fair-weather federalists because their support for states' rights coincided with the policy outcome they preferred. If Roe were reversed, some members of Congress who worship at the altar of state's rights would likewise discover the virtues of a national approach. (Some already have done so on the issue of "partial birth" abortion.)

Sen. Specter is free to press Judge Roberts about whether Roberts would be willing to defer to Congress when it came to what constitutes the regulation of interstate commerce. But even if Specter gets the answer he wants, he may not be completely happy.