UGA Lawdog wrote:Didn't a Republican senator basically ask that question of Kagan during her confirmation hearings? As in, if the federal government passed a law that you have to eat a certain number of servings of fruits and vegetables per day, would it be constitutional, under the theory that workers who are healther are more productive, and that in turn affects interstate commerce?
Kagan flatly refused to answer the question. The only sane response, of course, would have been, "Only a dictatorship presumes to tell people what they must or must not eat."
Yup. That was Coburn:
http://www.politico.com/blogs/joshgerst ... s_law.html
Senate testimony transcript wrote: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.
Coburn: Yeah, but I got one that’s real similar to it that I think is equally dumb. I’m not going to mention which it is.
Kagan: 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: I guess the question I’m asking you is do we have the power to tell people what they have to eat every day.
Kagan: Sen. Coburn….
Coburn: I mean what is the extent of the Commerce Clause? We have this wide embrace of the Commerce Clause, which these guys, who wrote this [holds up bound copy of Federalist Papers] never, ever fathomed that we would be so stupid to take our liberties away by expanding the Commerce Clause this way.
Coburn: I go back to my original question to you: is it within the Constitution for me to write a bill having been duly elected by the people of Oklahoma to say and get it signed by the president that you have to eat three fruits and three vegetables every day.
Kagan: First let me say about the federalist papers quote that you read that it is absolutely the case that the judiciary’s job is to you know in Marbury v. Madison the famous phrase to say what the law is and to make sure I think I’ve talked about it as policing the constitutional boundaries making sure the Congress doesn’t go further than the Constitution says it can go, doesn’t violate individual rights and also doesn’t act outside its enumerated authorities. We live in a government in which Congress’s authorities are enumerated in Article I of the Constitution and Congress can’t act except under one of those heads of authority. Now as I talked about with Sen. Cornyn 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 non-economic activities and that’s the teaching of Lopez and Morrison that the Congress can’t regulate non-economic 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. But I do want to sort of say again that we can come up with sort of you know just ridiculous-sounding laws and the principal protector against bad laws is the political branches themselves. And I would go back I think to Oliver Wendell Holmes on this. He was this judge who lived in the early 20th Century— hated a lot of the legislation that was being enacted during those years but insisted that if the people wanted it, it was their right to go hang themselves. Now, that‘s not always the case but there is substantial deference due to political branches—
Coburn: I’m running out of time. I want to give you another condition: 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?
Kagan: Sen. Coburn, I feel as though the principles that I’ve given you are the principles that the court should apply…
Coburn: I have a little problem with that. If we’re going to hand ourselves and as our founders, three of the critical authors of our Constitution thought the judiciary had a reason to smack us down, and as Oliver Wendell Holmes—if we wanted to be doing stupid stuff we can do stupid stuff—I disagree. And that’s not activism. That’s looking at the Constitution and saying well we’re going to ignore it even if it does expand the Commerce Clause because the Commerce Clause is what has gotten us into a place where we have a $1.6 trillion deficit that our kids’ future has been mortgaged that we may never recover from. That’s not an understatement at all. In 25 years, each of our kids are going to owe $1,113,000 they pay interest on that before they do anything for themselves or their kids. So, the fact is that we have this expansive clause and we have to have some limit on it and if the courts aren’t going to limit it within the original intent, instead of continuing to rely on precedent and this vast expansion of it, the only hope is—is that we have to throw out most of the Congress. But the point is that their original intent is that you wouldn’t ignore their original intent. What we find ourselves today on the Commerce Clause is through a period of precedent-setting decisions we have allowed the federal government to become something that it was never entitled to become. And with that a diminishment of the liberties of the people of this country both financially and in terms of their own liberty.
Kagan: Well, Sen. Coburn, I guess a few points. The first: I think there are limits on the Commerce Clause, which are the ones that are articulated by the Court that were articulated by the Court in Morrison and in Lopez. Which are primarily about non-economic activity and Congress not being able to regulate non-economic activity. I guess the second point I would make is I do think that very early in our history and especially I would look to Gibbons v. Ogden, where Chief Justice Marshall did, in the first case about these issues, essentially read that clause broadly and provide real deference to legislatures and provide real deference to Congress about the scope of that clause, not that that clause doesn’t have any limits, but that deference should be provided to Congress with respect to matters that affect interstate commerce. And I guess the third point is just to say that I think that $1.6 trillion deficit may be an enormous problem—it may be an enormous problem. But I don’t think it’s a problem for courts to solve. I think it’s a problem for the political process to solve.
Coburn: You missed my whole point. We’re here because the courts didn’t do their job in limiting our ability to go outside of original intent on what the Commerce Clause was supposed to be. You can’t solve the problem now but you helped create it as a court because you allowed something other than what our original fathers thought was a legitimate role for the federal government.
Kagan never did give Coburn a straight answer, even given multiple opportunities to do so. Lots of blather and hemming and hawing around, but no answer to the obvious.
Which perfectly illustrates the divide between those of us who think the federal government should go the hell away (to the limited extent that that's possible) and those who think the federal government is omnipotent, or close to it.
I note for those who think that they're in the "middle" and "moderate" that the hard left never considers any battle won until everyone, to include you, has been totally subjugated to whatever they think is "best" for you, and, of course, only they know what that might be, even if they won't state it flat-out in no uncertain terms because that would upset you at least as much as it upsets most people.
Kagan is a good example of that precept. If the left wins this round, you're going to have to buy (and pay for) a lot more than some broccoli.
All the States incorporated daughter corporations for transaction of business in the 1960s or so. - Some voice in Van Pelt's head, circa 2006.