KAGAN, VEGETABLES, AND CONTEXT…. As a rule, when you see the words, “Far-right blogs are all worked up about _____,” you can probably assume the development that fills in the blank is foolish. Yesterday, the rule held true.
As part of Elena Kagan’s Supreme Court confirmation hearings, Sen. Tom Coburn (R-Okla.) wanted to explore the nominee’s approach to government regulatory power under the Commerce Clause. He came up with a hypothetical: “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 it’s now the law of the land, got to do it, does that violate the Commerce Clause?”
Kagan replied that such an effort “sounds like a dumb law.” Realizing that Coburn was apparently serious, she added, “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.”
Coburn added that he wants to know whether the government can tell Americans what to eat. As Kagan pondered how best to answer, the far-right senator insisted that the constitutional framers “never imagined that we would be so stupid to take our liberties away” through the Commerce Clause.
The video of that exchange quickly became a right-wing favorite — pushed aggressively by Drudge, Hannity, and Senate Republicans — because it was apparently “proof” that Kagan supports some kind of expansive “nanny state.”
What the excited conservatives didn’t realize is that the discussion continued beyond the 78 seconds shown in the circulated YouTube clip.
In comments she made after the brief clip the GOP posted, Kagan indicated that laws that regulated non-economic activity, which presumably would include eating, were beyond Congress’s Commerce Clause power.
Coburn later modified his hypothetical to assert that there would be an economic impact. “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
“I feel as though the principles that I’ve given you are the principles that the court should apply,” Kagan said at that point.
So, while Republicans and allied activists threw a fit over Kagan dodging the question, the nominee actually answered it, and did not take a wildly expansive view of the Commerce Clause. Coburn was playing a little game, but his GOP friends got all worked up over nothing.
As Kevin Drum concluded, “We are truly ruled by idiots. At least, we will be if Republicans win control of Congress in November. Be afraid. Be very afraid.”
