Elena Kagan may have to answer ten million questions at her confirmation hearings before the Senate votes on whether she should be a U.S. Supreme Court Justice. But we all knew, well before the first question was asked, how the vote would turn out. She’s going to be confirmed. Fair enough. Elections, as they say, have consequences.
Ms. Kagan could reveal at those hearings that she thinks the smartest, most decent, most freedom-loving political figure in the entire world is Mahmoud Ahmadinejad, the goofy president of Iran, and she’d be confirmed. Such is the Democratic majority in the Senate. She could say that she’s been secretly dating Osama bin Laden — and she’d be confirmed. She could say a federal law that requires all Americans to eat fruits and vegetables every day is constitutional, and she’d be confirmed.
Oops! My bad. She pretty much really did say that last one.
Tom Coburn, a Republican from Oklahoma (and a medical doctor) asked Ms. Kagan: “If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the Commerce Clause?”
Now you’d figure that anyone smart enough to be the Dean of the Harvard Law School and the Solicitor General of the United States would be smart enough to say, “Sure that violates the Commerce Clause. There are limits to what Congress may do. And Congress may not make people eat certain foods just because they’re good for you. There is such a thing as privacy, you know.”
But she didn’t say that. Instead, Ms Kagan said: “Sounds like a dumb law. 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.”
I could think of worse things that courts might do than strike down dumb laws, but that’s a discussion for another time.
What Senator Coburn was getting at, of course, was whether the portion of ObamaCare that says we all have to buy medical insurance is constitutional, because it falls under the Commerce Clause. If you can force people to buy insurance, why can’t you force them to eat healthy food, too, is what Coburn was getting at.
Kagan, knowing exactly what Coburn was getting at, went on to say that laws that regulated non-economic activity – like what kind of foods we eat — were beyond Congress’s Commerce Clause power.
So Coburn, a pretty smart individual himself, asked another question to take economic activity into account. “What if I said that if eating three fruits and three vegetables would cut health care costs 20%? Now, we’re into commerce. And since the government pays 65% of all the health care costs why isn’t that constitutional?” he asked Kagan.
“I feel as though the principles that I’ve given you are the principles that the court should apply,” Kagan responded. If you call that a response.
So yes, Elena Kagan will be the next Justice of the Supreme Court of the United States. And when the question of whether Congress can pass a law that forces every American to buy something – medical insurance in this case – she will say Congress can do just that. And if that takes us one step closer to the Nanny State, well, elections, you know, do have consequences.