Elena Kagan balances your diet

Elena Kagan, in her hearing on Tuesday, seemed to accept the federal government’s power to force you to eat three servings of fruits and vegetables every day.  She opined that it would be a “dumb law” but refused to say it was unconstitutional.

Supporters of limited government have long been concerned about skewed interpretations of the Constitution that justify government intervention into whole swathes of life far beyond the Framers’ contemplation. But hearing a Supreme Court nominee say that Congress could regulate one of the most private decisions a human being makes—what to eat—is about as bad as any nightmare scenario a tin-foil-hat conspiracy theorist can conjure.

And Senator Tom Coburn (R-Okla.) was not wearing any kind of hat when he asked his fruits-and-vegetables question.

For several months now, serious scholars have been arguing that if the government can force people to buy health insurance, there is nothing the government can’t force you to do. “Cash for clunkers” not reviving the auto industry?  Make everyone buy a Chevy.  Housing industry still not sufficiently stimulated?  Mandate that people can only live in houses built in the last decade.

It’s not any kind of logical leap to ask whether, in the name of combating our obesity epidemic and lowering national health care spending, the government can regulate gastronomic intake—or require people to join a gym (assuming the health club company has successfully lobbied for its franchises to be on the “approved” list).

As is often the case when the government claims ever-increasing powers, the Commerce Clause is the culprit here.  This constitutional provisions grants Congress the power to “regulate Commerce . . . among the several States.”

Seems simple enough, with the noble goal of preventing interstate trade wars and making the United States one national economy instead of the hodge-podge of colonies in place under the Articles of Confederation.

In the 1942 case of Wickard v. Filburn, however, the Supreme Court ruled that the government could fine a farmer for growing and consuming too much wheat instead of taking it to market—because his actions, when aggregated with those of other farmers, affect national wheat prices. Since then, only twice has the Court struck down legislation as exceeding Congress’s commerce power: 1995’s U.S. v. Lopez, involving gun-free school zones (not part of a “larger regulation of economic activity”) and 2000’s U.S. v. Morrison, about the Violence Against Women Act (too “attenuated” an economic effect).

Those cases were outliers but four liberal justices opposed even their meager limits on federal power.  And they still left us with the prevailing standard—or “settled law,” as Kagan puts it—of Congress being able to regulate “channels” and “instrumentalities” of interstate commerce, as well as those activities that “substantially affect” interstate commerce. That’s a loophole you can drive a produce truck through.