Roberts Commerce Clause Comments

Glenn Reynolds gets up tight over Roberts' answer to a Schumer question on the commerce clause. I think maybe he should re-read the comment looking at what was actually said. I also find it a bit strange that Schumer didn't catch on that Roberts' undercuts his assumption.

SCHUMER: OK. Let me ask you, then, this hypothetical: And that is that it came to our attention, Congress', through a relatively and inexpensive, simple process, individuals were now able to clone certain species of animals, maybe an arroyo toad. Didn't pass over state lines; you could somehow do it without doing any of that. Under the commerce clause, can Congress pass a law banning even noncommercial cloning?

ROBERTS: I appreciate it's a hypothetical, and you will as well, so I don't mean to be giving bindings opinions. But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce. Obviously if you were successful in cloning an animal, that's not going to be simply a local phenomenon. That's going to be something people are going to...

SCHUMER: We can leave it at that. That's a good answer, as far as I am concerned.

Schumer states the assumption that the activity of cloning wouldn't pass over state lines. Roberts then clearly states that congress could determine that it went over state lines and could then regulate it.

I think Reynolds is missing a point that the hypothetical was flawed, and allowed that there is an alternative view on whether interstate commerce is involved. Also missed is that just because congress chooses to regulate under the commerce clause, doesn't mean that a SCOTUS finding couldn't over turn the law if an activity is determined never to be effecting interstate commerce.

Am I missing something here?