Kagan's Commerce Clause Views Spark Controversy

Can Congress force you to eat vegetables?

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Both liberals and conservatives have been wary of Supreme Court nominee Elena Kagan's views on the power of federal government. On the left, critics worry she takes too broad a view of executive privilege, while some on the right say she would allow Congress to write sweeping regulatory legislation. Now, some observers are alarmed by Kagan's response to questions about the authority granted to Congress by the Commerce Clause of the Constitution.

Republican Senator Tom Coburn asked Kagan about a hypothetical law that would require all Americans to eat three vegetables and fruits a day. He was subtly alluding to the regulatory power of health care reform, which mandates buying health insurance. "Sounds like a dumb law," Kagan replied. "But I think that the question of whether it's a dumb law is different from whether the question of whether it's constitutional and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless." How big of a deal is this?


  • Why This Matters Now  The Wall Street Journal argues, "Kagan's views matter in particular because one of the most important cases she'd confront on the Court is the legal challenge by some 20 states to ObamaCare. ... Modern Supreme Court nominations have been dominated by such contentious social issues as abortion and gay marriage. But with the Obama Administration's radical expansion of government, fundamental questions about the limits of federal power deserve to come to the fore. The Supreme Court has a vital role to play in defending individuals and the states against excessive Washington control. If Ms. Kagan believes the Commerce Clause can justify nearly any Congressional decision, this is reason alone to justify a vote against her confirmation."
  • The Underlying Cultural Debate  The Guardian's Michael Tomasky muses, "this is pretty much a classic argument about individual liberty vs. the common good that liberalism always loses in American culture but not necessarily in others. If everyone ate three servings of vegetables a day, we'd be living in an improved society. Heart attacks and obesity would reduce, health-care costs would go down by the order of billions of dollars, American farmers would be making more money and on and on and on and on. The benefits would be vast. But of course, to American conservatives, this would be fascism."
  • An Unresolved Issue Since 1930  Talking Points Memo's Andrew Pincus explains, "Several times, Kagan has been asked her view of the scope of Congress's power under the Commerce Clause. In the 1930s, a limited view of the Commerce Power was used to invalidate New Deal legislation. After President Roosevelt announced his proposal to expand the number of Justices, the famous 'switch in time to save Nine' occurred, and the Court repudiated its prior decisions and adopted a much broader view of Congress's power. That issue is back with a vengeance today." Pincus predicts we'll be hearing more about this.
  • View of Congressional Power Is Expanding in Both Parties  Conservative blogger Allahpundit worries, "Normally this would be a chance to declare her 'out of the mainstream,' but let’s face it: The idea that Congress can do anything its black little heart desires so long as there’s some glancing relationship to commerce is perfectly within the Democratic mainstream — and, in certain cases, the Republican mainstream too. In fact, some legal experts expect the inevitable Supreme Court ruling on O-Care’s individual mandate will break 9-0 or 8-1. I’m skeptical of that, but after the Raich decision, would it surprise you?"
  • Kagan Should Have Refused to Answer  The Washington Post's Eva Rodriguez explains "what I wish she would have said," writing that Kagan should have simply declared "I can't and won't give anyone a guarantee about what approach I will or will not take." Rodriguez sighs, "She would never, EVER be allowed to get away with telling this truth. She'd get hammered mercilessly by Republicans, who'd take this as confirmation that she's a raging liberal. And she would risk offending some fragile egos on the left."
This article is from the archive of our partner The Wire.