What About Tom Coburn's 'Expansive View of the Commerce Clause'?

Sen. Tom Coburn (R-Okla.), who on
Tuesday pressed
Supreme Court nominee Elena Kagan to acknowledge limits to
congressional power under the Commerce Clause, yesterday
told ABC News:

I think the thing that's very worrisome is that she has a very
expansive view of the Commerce Clause, and I find that she's
ignorant of the Constitution's limitation of that, especially what
our Founders wrote.

Coburn is probably right to surmise that Kagan "has a very
expansive view of the Commerce Clause" (as does the justice she is
replacing and as any nominee chosen by Barack Obama was apt to),
and I agree that it's worrisome. But it's unfair to describe her as
"ignorant" of the Framers' intent or the original understanding of
the clause. More likely, she does not think those considerations
should be decisive in determining the federal government's
powers.

In any case, Coburn himself "has a very expansive view of the
Commerce Clause" when it serves his purposes. Another subject on
which he grilled Kagan was "partial birth abortion," which he
successfully sought to prohibit throughout the country. In 2007,
after the Supreme Court
upheld the federal Partial-Birth Abortion Ban Act, Coburn
welcomed the decision and
bragged that he was "one of the original authors" of the bill.
Guess which enumerated power Congress supposedly was exercising
when it passed Coburn's law.

The ban applies to "any physician who, in or affecting
interstate or foreign commerce, knowingly performs a partial-birth
abortion." As Independence Institute scholar David Kopel and
University of Tennessee law professor Glenn Reynolds noted in a
1997 Connecticut Law Review
article, this language is baffling "to any person not familiar
with the Commerce Clause sophistries of twentieth century
jurisprudence....Unless a physician is operating a mobile abortion
clinic on the Metroliner, it is not really possible to perform an
abortion 'in or affecting interstate or foreign commerce.'" These
are precisely the sophistries that Coburn, one of the few members
of Congress who even pays lip service to the doctrine of enumerated
powers, claims to oppose. Just as the Supreme Court should not have
abused the Constitution to override state abortion restrictions in
Roe v. Wade, avowed constitutionalists like Coburn should
not abuse the Constitution to impose federal abortion
restrictions.

More on the unfulfilled promise of constitutional conservatism
here.
In a 2007 Reason article,
Dave Weigel asked whether Coburn is "an extreme social
conservative, a libertarian hero, or both."

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