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John Roberts’ Hypothetical

Thursday, September 15, 2005  |  posted by Hugh Hewitt

Instapundit is upset with John Roberts’ answer on the hypothetical Congressional statute dealing with cloning as interstate activity.

I am not, and as counsel to the plaintiffs in the “hapless toad case,” let me tell you why: All the cloned toads in the world don’t make the regulation of that “hapless” toad of my case a valid target of the Congress’s power to regulate interstate commerce. Roberts did not undermine Lopez, Morrison or the idea that Wickard has limits. Rather, he simply stated that a hypothetical Congressinal statute dealing with cloning that was based on hypothetical Congressional findings showing the statute was regulating interstate commerce could be upheld as a valid exercise of Congress’s authority.

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