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Elena Kagan on fruits and vegetables

Coburn Never trust a video that gives a politician the last word.

Provocatively titled "Kagan Declines to Say Gov't Has No Power to Tell Americans What to Eat," this YouTube video provides just the first minute or so of an exchange between Sen. Tom Coburn (R-Okla.) and Supreme Court nominee Elena Kagan (D-Obama) about the Constitution's "Commerce clause." In it, Coburn asks Kagan whether it would violate the Commerce clause if he somehow persuaded his colleagues to pass a bill requiring Americans to "eat three vegetables and three fruits, every day." Kagan reaches first for a laugh line -- "Sounds like a dumb law" -- before saying, somewhat pointlessly, that "courts would be wrong to strike down laws that they think are senseless just because they're senseless." The clip then has Coburn railing on about how the broad interpretation of the Commerce clause by lawmakers and judges is a threat to liberty.

And then it ends. But Kagan had more to say on the subject of fruits and vegetables, and Coburn offered some interesting nuggets of his own about his fervent wish for an precedent-erasing judiciary.

Politico picked up where the clip left off, offering a partial transcript of the mini-debate. Kagan noted that courts would question whether ordering people to eat fruits and vegetables had a substantial connection to interstate commerce. After all, she observed, non-economic activity is beyond the reach of the Commerce clause. Throwing the ball back in Coburn's court, she said, "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."

But Coburn didn't like the idea of lawmakers being accountable for their own actions. He pressed Kagan to join him in a vision of a vigorous, clock-rewinding court that held lawmakers in check. As he put it, "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."

Somehow I don't think it takes an expansive reading of the Commerce clause to wage two wars off-budget, cut taxes without cutting spending, and then go hundreds of billions of dollars deeper into the hole when a recession hits. But I digress. Kagan's answer illustrates the difference between how conservatives define judicial activism (advancing equity) and how liberals do (rejecting precedents):

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.

By the way, the courts have already recognized that insurance is a matter of interstate commerce. Requiring people to buy it can be seen as a necessary companion to regulations that require insurers to offer policies to everyone, regardless of pre-existing conditions. Without the mandate to buy coverage, people would game the system by waiting to purchase insurance until they needed treatment. The sale of produce is interstate commerce, too, but it's hard to come up with a legitimate regulatory regime that relies on a mandate that people eat their fruits and vegetables.

-- Jon Healey

Credit: Alex Wong / Getty Images


Comments () | Archives (7)

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LOL. You just drove the last nail in the coffin of this unconstitutional healthcare bill, Jon...

" Kagan noted that courts would question whether ordering people to eat fruits and vegetables had a substantial connection to interstate commerce. After all, she observed, non-economic activity is beyond the reach of the Commerce clause. "

So, according to Kagan's logic, is ordering people to buy health insurance from a private provider. Ouch.


"It is our position that the individual mandate is unconstitutionally overbroad under the commerce clause," Virginia Attorney General Ken Cuccinelli, a Republican, told NPR earlier this year. "You cannot compel someone to buy something from someone else."

T. Beech

Under the current administrations health care reform muslims are exempt from the mandate to purchase health care, please explain.

Jon Healey

@T Beech -- That's hogwash. There's an exemption in the mandate designed for the Amish, not Muslims. The exemption in the bill is here: http://www.opencongress.org/senate_health_care_bill?version=enr&nid=t0:enr:2369.

It refers to a section of tax law:, which the Supreme Court described this way in 1995:

The exemption is available to "a member of a recog-
nized religious sect" that has "established tenets or
teachings" "by reason of which [the member] is
conscientiously opposed to acceptance of the benefits
of any private or public insurance which makes
payments in the event of death, disability, old-age, or
retirement or makes payments toward the cost of, or
provides services for, medical care."
See http://www.justice.gov/osg/briefs/1995/w95394w.txt

I have to wonder why you (or your source) assumed that the provision was aimed at Muslims. AFAIK, their religion has nothing against health insurance or medical treatment generally, unlike, say, the Amish or Christian Scientists.

Jon Healey

@Nemo -- You're assuming too much about Kagan. You should follow the links and read her complete answers, as well as the previous post on the topic of the law's constitutionality. I don't think there's any question that she left open the possibility to go either way on this issue. She didn't say that buying health insurance was non-economic activity; in fact, it's commerce, and the Supreme Court has already held that it's *interstate* commerce. The only issue is whether the mandate is substantially related to legitimate regulatory aims. My guess is that if the Supreme Court takes the case, she'll vote to defer to Congress' judgment and uphold the mandate.

But Kagan wouldn't be the deciding vote. The more interesting question is where Scalia would come down, given the view of the Commerce clause that he espoused in the medical marijuana case. See http://opinion.latimes.com/opinionla/2010/03/an-individual-mandate-to-buy-a-malibu.html.


Why dance around it. Given her historical performance working within a framework of rules, is she pre-disposed to seek activist advantage to advance her personal views? She doesn't like individiual weapons possession, has participated in conceiving individual-rights hampering legislation (please waste no time claiming a legitimate vaugery existed with the Second Amendment, it's self-evident), and claims precedent is binding like Sotomayor (who amazingly dissented in McDonald case even after the D.C. gun ban was overturned on Second Amendment affirmation). If Kagen does not promote the affirmation and exercise of ALL the Bill of Rights, drop her and move on.

Jon Healey

This comment is by quatidion, transferred from another blog post:

http://www.npr.org/blogs/thetwo-way/2010/08/02/128929554/in-its-challenge-to-federal-health-care-law-virginia-overcomes-legal-hurdle "Responding to a lawsuit brought by the Commonwealth of Virginia, claiming the Patient Protection and Affordable Care Act, the new federal health-care law, is unconstitutional, the Obama administration said the Old Dominion didn't have standing to bring the suit in court. Today, a federal judge rejected the U.S. government's argument. Virginia Attorney General Ken Cuccinelli II has won a legal victory — albeit a procedural one — that may lead to a full hearing in October, The Washington Post reports. In his decision, U.S. District Judge Henry Hudson said that, "while this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate — and tax — a citizen's decision not to participate in interstate commerce." Given the presence of some authority arguably supporting the theory underlying each side's position, this court cannot conclude at this stage that the complaint fails to state a cause of action. Last month, lawyers from the Department of Justice and Virginia debated the motion in Richmond, at the Spottswood W. Robinson III and Robert R. Merhige, Jr., Federal Courthouse there. Cuccinelli filed the suit shortly after the Patient Protection and Affordable Care Act was signed into. His state has passed legislation that says, essentially: No Virginian can be forced to purchase health insurance."


I think the biggest issue here as actually what stands behind the words.
Commerce? who cares? (well, we all. but...)
It seems as if some of us have forgotten that laws are made by us for us, and not the other way around. How can you enforce someone to eat fruits for crying out loud.
It reminds me of the story about the pedestrian standing in a red light, not daring to cross the road. It's 3am, there is absolutely no car in sight, and neither did a car pass in the last 30 minutes he spent there.
The light is broken. . .
Wake up. :)



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The Opinion L.A. blog is the work of Los Angeles Times Editorial Board membersNicholas Goldberg, Robert Greene, Carla Hall, Jon Healey, Sandra Hernandez, Karin Klein, Michael McGough, Jim Newton and Dan Turner. Columnists Patt Morrison and Doyle McManus also write for the blog, as do Letters editor Paul Thornton, copy chief Paul Whitefield and senior web producer Alexandra Le Tellier.

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