Is It Constitutional? Well, It's Dumb, but That's Not the Same Thing. All Right Then.

In keeping with her newly
acquired conviction that Supreme Court nominees should never
say anything that might indicate how they would perform on the
Supreme Court, Elena Kagan yesterday gave a classic
nonanswer to a question that Sen. Tom Coburn (R-Okla.) posed
about the Commerce Clause:

Coburn: 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?

Kagan: 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.

There is nothing objectionable in Kagan's response, except that
it does not address the question Coburn asked, which is less
fanciful than it might seem. As I have argued,
the constitutional logic needed to justify the individual health
insurance mandate as an exercise of the federal government's
authority to regulate interstate commerce is so elastic that it can
be stretched to cover highly intrusive laws regulating what
heretofore were considered private choices. But I suppose I am only
reinforcing Kagan's excuse for stonewalling: Because the Court
might one day consider a law along the lines of the one Coburn
described, she cannot provide any "hints" as to how she might view
its constitutionality. The only questions she can answer are ones
that are utterly irrelevant to any case she might conceivably
confront after she is confirmed.

The Atlantic has a
roundup of reactions to the fruit-and-veggie exchange.

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