WASHINGTON — In his 15 years on the federal appeals court in Philadelphia, Judge Samuel A. Alito Jr. has provided just a few direct statements on the intense legal debate over how power should be shared between the federal government and the states.
To some scholars, those occasions have been revealing and significant and suggest that if confirmed to the Supreme Court, Alito might be an aggressive leader in expanding state authority at the expense of the federal government.
In 1996, Alito voted to strike down a recently enacted federal law that limited the possession of machine guns, in the case of United States v. Rybar. In his dissent from the opinion of the three-judge panel of the U.S. Court of Appeals for the 3rd Circuit, he said a gun dealer in Pennsylvania should not have been convicted because Congress did not constitutionally have the right to enact the law on machine guns.
In that case, Alito relied on a Supreme Court ruling from 1995, United States v. Lopez, that struck down a federal law providing strong penalties for possessing guns in the immediate vicinity of a school. He not only disagreed with judges on the appeals court, but also those of at least three other circuit courts that upheld the law on machine guns.
"It shows a man who is strongly committed to the notion that the federal government is one of limited powers and is willing to limit that federal power," said Robert C. Post, a professor at the Yale Law School and an authority on federalism.
Although the dissent appears to place Alito in the conservative camp that is trying to reshape congressional authority and the relationship with the states, it puts him generally in line with the record of Justice Sandra Day O'Connor, whom he would succeed.
In the machine-gun case, Alito wrote that if the Lopez ruling was not "some constitutional freak" the machine-gun law could not be enforced, because mere possession of a machine gun had no more effect on interstate commerce than possessing firearms within a school zone.
"If there are distinctions of constitutional dimension here, they are too subtle for me to grasp," he wrote.
Charles Fried, a professor at Harvard Law School and a former Justice Department colleague of Alito's, called Alito's dissent "a good-faith effort to make sense out of what the Supreme Court said" in the Lopez case.