John Roberts and the New Federalism

Over at the Independent Institute's website, I have an op-ed up on Judge Roberts and his support for the Supreme Court's federalism jurisprudence. Here is a taste:

Considering Roberts has served only two years as a federal judge, he has authored very few significant court decisions. However, the one opinion that provides a glimpse into attitude toward the New Federalism is Judge Roberts's dissenting opinion in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (2003). Rancho Viejo concerned an order of the federal Fish and Wildlife Service directing a developer to remove a fence from his property to accommodate the movements of arroyo toads. A panel of the D.C. Court of Appeals upheld the order under the Commerce Clause, but Judge Roberts urged that the entire Court rehear this issue.

Roberts's opinion indicated that the protection of a non-commercial, local toad was not "commerce" subject to federal regulation. The activity being regulated (i.e., the erection of a fence) on private property did not, in Judge Roberts's opinion, substantially affect interstate commerce. Judge Roberts described the panel's reasoning as "inconsistent with the Supreme Court's holdings in United States v. Lopez" and other New Federalism cases. He feared that the panel's broad approach would destroy any real limits on federal power under the Commerce Clause.