Is Eating Fruits and Vegetables an Economic Activity? Does It Matter?

The Washington Monthly's Steve Benen
suggests that "far-right blogs" are ignoring the "context" of
Supreme Court nominee Elena Kagan's exchange with Sen. Tom Coburn
(R-Okla.) about the extent of congressional powers under the
Commerce Clause. As I noted
yesterday, Kagan dodged Coburn's question about whether a federal
law requiring Americans to eat "three vegetables and three fruits
every day" would be a legitimate exercise of the power to regulate
interstate commerce. "What the excited conservatives didn't
realize," Benen writes, "is that the discussion continued beyond
the 78 seconds shown in the circulated
YouTube clip." He is referring to these subsequent
comments by Kagan:

The Commerce Clause has been interpreted broadly. It's been
interpreted to apply to regulation of any instruments or
instrumentalities or channels of commerce, but it's also been
applied to anything that would substantially affect interstate
commerce. It has not been applied to noneconomic activities, and
that's the teaching of Lopez and Morrison: that
the Congress can't regulate noneconomic activities, especially to
the extent that those activities have traditionally been regulated
by the states. And I think that that would be the question that the
Court would ask with respect to any case of this kind.

Coburn tried one last time to get Kagan to say whether his
hypothetical law would be constitutional:

Coburn: What if I said that if eating three
fruits and three vegetables would cut health care costs 20 percent?
Now we're into commerce. And since the government pays 65 percent
of all the health care costs, why isn't that constitutional?

Kagan: Sen. Coburn, I feel as though the
principles that I’ve given you are the principles that the court
should apply.

Benen quotes Politico's Josh Gerstein, who acknowledges
that "Kagan never definitively answered Coburn's
question" but
adds, "Kagan indicated that laws that regulated non-economic
activity, which presumably would include eating, were beyond
Congress's Commerce Clause power."

There is problem with surmising from Kagan's responses that she
would in fact vote to overturn a federal fruit-and-veggie mandate:
She is wrong when she says the Commerce Clause "has not been
applied to noneconomic activities." While
U.S. v. Lopez, a 1995 decision that overturned a
federal ban on gun possession in or near schools, and
U.S. v. Morrison, a 2000 decision that rejected a
federal cause of action for victims of sexual assault, did take a
skeptical view of regulating noneconomic activities under the
Commerce Clause, they left the door open to such regulation when it
is "an essential part of a larger regulation of economic activity,
in which the regulatory scheme could be undercut unless the
intrastate activity were regulated." The Supreme Court seized upon
that rationale in
Gonzales v. Raich, the 2005 case in which it held that
the power to regulate interstate commerce "includes the power to
prohibit the local cultivation and use of marijuana in compliance
with California law" (i.e., the state's medical marijuana law).

According to Raich, mere possession and consumption of
marijuana falls within the Commerce Clause, so it's hard to see why
mere possession and consumption of fruits and vegetables would not,
provided the government said a fruit-and-veggie mandate was "an
essential part of a larger regulation of economic activity." Coburn
suggested how that argument might go, based on the federal
government's heavy involvement in the health care market.
Alternatively, federal regulation of agriculture—the rationale for
the 1942 decision
Wickard v. Filburn, which said the government could
stop farmers from growing wheat for their own use because the
resulting drop in demand affected interstate commerce—could provide
a handy excuse. I would like to believe that Kagan was stating her
own opinion when she said the Commerce Clause does not apply to
noneconomic activity, but I think she was simply mischaracterizing
the Supreme Court's precedents. Even if this weren't the case, the
decision not to eat fruits and vegetables could be described as an
economic activity through the same tortured
logic that justifies the individual health insurance mandate as
a regulation of interstate commerce.

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