Is Eating Fruits and Vegetables an Economic Activity? Does It Matter?

The Washington Monthly's Steve Benen suggests that "far-right blogs" are ignoring the "context" of Supreme Court nominee Elena Kagan's exchange with Sen. Tom Coburn (R-Okla.) about the extent of congressional powers under the Commerce Clause. As I noted yesterday, Kagan dodged Coburn's question about whether a federal law requiring Americans to eat "three vegetables and three fruits every day" would be a legitimate exercise of the power to regulate interstate commerce. "What the excited conservatives didn't realize," Benen writes, "is that the discussion continued beyond the 78 seconds shown in the circulated YouTube clip." He is referring to these subsequent comments by Kagan:

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 noneconomic activities, and that's the teaching of Lopez and Morrison: that the Congress can't regulate noneconomic 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.

Coburn tried one last time to get Kagan to say whether his hypothetical law would be constitutional:

Coburn: What if I said that if eating three fruits and three vegetables would cut health care costs 20 percent? Now we're into commerce. And since the government pays 65 percent 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.

Benen quotes Politico's Josh Gerstein, who acknowledges that "Kagan never definitively answered Coburn's question" but adds, "Kagan indicated that laws that regulated non-economic activity, which presumably would include eating, were beyond Congress's Commerce Clause power."

There is a problem with surmising from Kagan's responses that she would in fact vote to overturn a federal fruit-and-veggie mandate: She is wrong when she says the Commerce Clause "has not been applied to noneconomic activities." While U.S. v. Lopez, a 1995 decision that overturned a federal ban on gun possession in or near schools, and U.S. v. Morrison, a 2000 decision that rejected a federal cause of action for victims of sexual assault, did take a skeptical view of regulating noneconomic activities under the Commerce Clause, they left the door open to such regulation when it is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." The Supreme Court seized upon that rationale in Gonzales v. Raich, the 2005 case in which it held that the power to regulate interstate commerce "includes the power to prohibit the local cultivation and use of marijuana in compliance with California law" (i.e., the state's medical marijuana law).

According to Raich, mere possession and consumption of marijuana falls within the Commerce Clause, so it's hard to see why mere possession and consumption of fruits and vegetables would not, provided the government said a fruit-and-veggie mandate was "an essential part of a larger regulation of economic activity." Coburn suggested how that argument might go, based on the federal government's heavy involvement in the health care market. Alternatively, federal regulation of agriculture—the rationale for the 1942 decision Wickard v. Filburn, which said the government could stop farmers from growing wheat for their own use because the resulting drop in demand affected interstate commerce—could provide a handy excuse. I would like to believe that Kagan was stating her own opinion when she said the Commerce Clause does not apply to noneconomic activity, but I think she was simply mischaracterizing the Supreme Court's precedents. Even if this weren't the case, the decision not to eat fruits and vegetables could be described as an economic activity through the same tortured logic that justifies the individual health insurance mandate as a regulation of interstate commerce.