When asked by Oklahoma Republican Sen. Tom Coburn to comment on the constitutionality of compelling Americans to eat fruit and vegetables during her Tuesday confirmation hearing, Supreme Court nominee Elena Kagan was vague.
Her non-answer has made some question Kagan’s views on how much power the government can exert over its citizens.
John Hart, Coburn’s communications director, told The Daily Caller, “I think what she said reflects a belief that the Constitution does not protect the individual rights the founders intended to protect.” Hart said the senator was pointing out that there is a whole group of leaders who have eroded the original intent of the commerce clause to usurp the rights of Americans.
Hart would not say whether the senator plans on voting for this most recent nominee to the court. “Coburn clearly has a problem with her judicial philosophy,” Hart told TheDC. “I do not think he is ready to say what his vote will be.”
For the uninitiated, the commerce clause is the basis for the majority of the federal government’s regulatory power. It grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian Tribes.”
Herewith the exchange:
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 it’s now the law of the land. Gotta do it. Does that violate the commerce clause?
KAGAN: Sounds like a dumb law.
COBURN: Yeah, I got one that’s real similar to it that I think is equally dumb. I’m not going to mention which one it is. [In reference to the mandate in the recent health-care law compelling Americans to purchase health insurance.]
KAGAN: But I think that the question about whether it is a dumb law is different from the question of whether the question of it’s constitutional. And, I think the courts would be wrong to strike down laws that they think are senseless, just because they’re senseless.
COBURN: Well, I think the question is: Do we have the power to tell people what to eat every day?
KAGAN: Senator Coburn… I … it’s … uh …
COBURN: What is the extent of the commerce clause? We have the wide embrace of the commerce clause, which these guys who wrote this never ever fathomed that we would be so stupid to take away our liberties away by expanding the commerce clause this way.