Alito has faced intense criticism for his sole dissent in the 1996 case U.S. v. Rybar, where he argued that Congress had no power under the Commerce Clause to ban fully automatic machine guns. He also added that for any regulation of machine guns, “Congress [should] be required to make findings showing a link between the regulation and its effect on interstate commerce, or that Congress or the president document such a link with empirical evidence.”
In today’s hearings, Alito attmepted to justify his ruling to Sen. Jon Kyl (R-AZ) by reiterating those standards:
I pointed out in my opinion that I would have viewed the Rybar case very differently if there had been a congressional finding or if the justice department, in presenting its argument to us, had been able to point to anything that showed that there was a substantial effect on interstate commerce, which was what the Supreme Court says is required.
But what Alito leaves out is that his justification goes against the conservative claim that he practices “judicial restraint.”
The majority in the case wrote of Alito’s proposed solution, “We know of no authority to support such a demand on Congress,” which would require the federal government to “play Show and Tell with the federal courts.”
Even Sen. Tom Coburn (R-OK) has acknowledged that Alito “was legislating” from the bench in Rybar.