Private: Simon Lazarus responds to Doug Kendall and Jennifer Bradley

Simon Lazarus is a co-chair of ACS's Constitution in the 21st Century Separation of Powers and Federalism Issue Group
Brief comments on Doug and Jennifer's typically penetrating take on the significance of Senator Specter's remarkable letter attacking the Federalism Five's contraction of the commerce clause and trivialization of Congress.
First: I actually think what Doug and Jennifer seem to discount as being discourteous to Congress is actually the most important bad thing about Lopez and especially Morrison -- more than whatever substantive limits to the commerce clause they portend -- which, after Raich, I believe are marginal at best. I think that, as a practical matter, if not as a technical matter, Raich dismissed the possibility that the Court, at least that Court, will continue second-guessing congressional judgments about adverse effects on commerce and what to do to cure them. I don't think future courts will change Raich, because, as Scalia's concurrence shows, the commerce clause is too useful for conservatives, who are for the most part big-government conservatives in sync with President Bush. But the zeal to, in effect, push aside McCulloch v. Maryland, in which Chief Justice Marshall barred the Court from intrusive means-end micro-managing of the rationality of Congressional legislative judgment, still lives with the Federalism Five's 14th amendment section 5 jurisprudence. In that area, and the related area of eviscerating or eliminating the ability of individuals to secure court enforcement of spending clause conditions, such as Medicaid requirements, the danger of aggressive judicial activism from a Bush II Court remains very serious. (I recognize that I may be less sensitive to the dangers of constraining the Endangered Species Act than Doug and Jennifer -- but I doubt that any of the other major environmental laws are in serious trouble on the commerce clause front.
Second, I think that Specter coming down so hard on this issue in this context - belated for sure, as you say -- is very significant, though still only potentially, in terms of moderate R's standing up and exerting leverage and in terms of Congress pushing back against the Court's anti-congress activism.
Third, for Specter to call the Rehnquist Court "activist" (twice) is amazing, and;
Fourth, the letter would seem to completely neutralize the white house's core strategy of barring questions to Roberts about specific cases, so it is a particularly interesting, and possibly consequential, mutinous act in that regard.