Indeed, Kagan was briefly pained to respond to Coburn’s question before reciting the holdings of Lopez and Morrison, that the federal government could not regulate non-economic activities or areas traditionally left to the states. Coburn followed up by asking whether, if it were shown that eating more vegetables reduced health care costs, would it fit into the “settled law” of what Congress can regulate. Kagan’s indirect answer—that nonsensical laws could still be constitutional—implied that it would.
Unfortunately, Kagan is tapping into a legitimate point: when you socialize health care costs, taxpayers have an interest in keeping those costs down, including by mandating behavior that should rightly be considered private. Some conservatives might like to require that all unwed mothers be injected with Depo-Provera or be put on other long-term birth control methods so taxpayers aren’t saddled with the cost of raising their children. Many on the left would not agree with that particular policy, but they rely on the same arguments about cost-control when they justify government mandates and subsidies like those proposed by Michelle Obama in her Let’s Move! campaign.
Both sides seek to justify state interference with personal freedom by appealing to the “I’m paying for it” logic. Neither side—nor unfortunately Elena Kagan—seems to understand that the key to a free society is to limit the extent to which one person’s choices mean a claim on another’s pocketbook.
Sallie James is a trade policy analyst and Ilya Shapiro a senior fellow in constitutional studies, both at the Cato Institute.