Food made an appearance today at Supreme Court nominee Elena Kagan’s confirmation hearing. Sen. Tom Coburn (R-Okla.) wanted to explore the reach of the Constitution’s “commerce clause,” which allows Congress to regulate interstate business. (Conservatives like to argue that it has been used to extend government power far beyond what the framers intended. In fact, almost all legal experts agree that Congress has wide powers to regulate economic activity and “commerce clause”-based constitutional objections to laws like the Patient Protection and Affordable Care Act are baseless.)
Coburn asked Kagan, If Congress passed a bill that commanded “‘Americans, you have to eat three vegetables and three fruits a day,’ would that violate the commerce clause?” Now, presumably he means three servings of fruits and vegetables, but leaving that aside, it is striking how the “food police” narrative plays such a significant role in the conservative imagination. I mean, only in the Tea Partiers’ fevered dreams would anyone even suggest such a thing.
Still, we need to know how Kagan would rule. Instead of taking the bait, Kagan quipped, “Sounds like a dumb law.”
Indeed. Watch it (via the Plum Line):
And for those keeping score at home, Greg Sargent at the Plum Line pointed out that later in the exchange Kagan declared that the commerce clause wouldn’t provide protection for such a law since the clause concerns economic activity not personal activity.
Updated 7:40p ET: The GOP apparently wants to run with this as an example of, well, something wrong with Kagan. But Josh Gerstein, Politico’s legal blogger, defends her answers and provides a full transcript to the near 10 minute exchange over Sen. Coburn’s theoretical “eat your veggies” law” and its various potential permutations. Gerstein also suggested that in their discussion, the veggies law was a stalking horse for the health care reform law, which many conservatives want to overturn on Commerce Clause grounds. That was what Coburn was probably referring to with his “I’ve got another law in mind” comment. Read it in all its ridiculous detail, if you dare.