Sen. John Kennedy, R-La., left a Biden judicial nominee speechless during her confirmation hearing Wednesday after he quizzed her on basic constitutional law theory.
Judge Ana de Alba, who currently serves on a California federal district court and is nominated to serve on the Ninth Circuit Court of Appeals, struggled to define the Dormant Clause and Commerce Clause under Article 1 of the Constitution.
"This has been in the news a lot lately, and you'll probably see it if you're confirmed to the court of appeal. Tell me about the Dormant Commerce Clause," Kennedy said.
"I’m somewhat familiar with the Commerce Clause, which is found in Article 1 of the Constitution," de Alba said.
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"There was a big Supreme Court case that just came out of your state," Kennedy interjected.
"And I apologize, Senator. You know, in my 11 years of practice and five years on the bench, I have not dealt with the Dormant Commerce Clause. But if I am so fortunate enough to be confirmed and have to deal with it in the future, I would certainly …"
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"You'll look it up?" Kenned said.
"Research it and, yeah, be prepared," de Alba said.
The Supreme Court case Kennedy referred to involved California's Proposition 12 – a state law that says pork products imported into the state had to meet certain welfare standards.
The Justice Department sided against California in that case, saying the state ballot measure was unconstitutional because it violated the Dormant Commerce Clause, which prohibits one state from discriminating against another state’s commerce or "impose undue burdens on interstate commerce."
Last week, the Supreme Court ruled in favor of California's law, a decision that pork producers say could have a transformational and costly effect on the pork production industry.
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The case came from the Ninth Circuit Appeals Court, where de Alba is now nominated to serve. De Alba seemed to only be aware the Dormant Clause was under Article 1 and not much beyond that.
"All right, then just tell me about the Commerce Clause in general," Kennedy said.
"So, my understanding about the Commerce Clause, like I stated, Senator, is that it is under Article 1 of the Constitution, and it allows the legislature to create laws that allow for movement and things related to commerce in the United States and anything crossing state lines, things like that," de Alba said.
"So, it allows Congress to regulate commerce?" Kennedy said.
"Yes," de Alba said.
"Between whom?" Kennedy said.
"Between states, for example," de Alba said.
"Anybody else?" Kennedy asked.
"It's not coming to mind right now, Senator," she said.
The Commerce Clause gives Congress power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
