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.

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  • Sandi||

    "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)."

    Using that logic, taking a shit would come under the Commerce Clause.

  • ||

    Yes. Gonzalez is a terrible case. But all of the aggregate effect cases are. The Feds could prohibit the transfer of POT across state lines or the importation of it, but no more if the Court actually bothered to care what the Constitution says.

  • robc||

    all actions are economic activities.

  • ||

    Angling for a nomination yourself?

  • robc||

    Sure, why not, there isnt any "lawyer" requirement in the constitution.

    But my statement is true. Doesnt justify idiotic commerce clause expansion though. However, if the Dems dont understand that my statement is being made in a Misesian sense, maybe they will push my nomination.

  • ||

    Non-economic activities like NOT buying health insurance are presumably within this philosophy.

  • ||

    There "IS" a webmaster...*

    *please refer to later posts to explain what I'm talking about...

  • Jordan||

    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?

    I can see regressives already drooling at the thought of such a law.

  • ||

    Yeah, Coburn shouldn't be giving them any ideas.

  • ||

    Go to hell spam filter.

  • ||

    for some reason that went through. Am I verboten from referring to "heath insurance"?

  • The Art-P.O.G.||

    Heath Insurance? Spam filter must think yiou're advertising.

  • The Art-P.O.G.||

    Argh, hoisted by my own petard!

  • ||

    to be fair, every time i spelled it correctly, it got spam filtered.

  • Try again||

    Matt has decided health insurance is too controversial. It is #3 on the list just after Dave Weigel and Mohamed cartoons ;-)

  • ||

    Ha!

  • ||

    So, asssuming this works and the spam filter does not thwart me

    "So presumably the non-economic activity of NOT buying state mandated heath insurance would not fall under the purview of the legislature, eh"

  • l0b0t||

    No, non-participation in a market was dealt with in Wickard v. Filburn. By growing their own wheat, farmers were NOT BUYING wheat on the open market and causing demand/prices to fall, that was felt to have a sufficient impact on interstate commerce to justify federal intervention.

  • ||

    so presumably if there is something you could do that the market could also do for you, your non-engagement in the services of the market is regulatable by government. Which really means that while the government can't make you eat you vegetables, but they sure as hell can make you buy them.

  • ||

    About time that bullshit decision was overturned.

  • KiwiMac||

    Can masterbation be outlawed? If youre beating off youre not visiting a prostitute who may (or may not) be from another state/country.

  • ||

    Similarly, if you use contraception, you're not producing babies that are potential future consumers and producers. Which reduces the workforce needed to maintain social security and medicare payments, and reduces future production.

    Producing babies to support future retirees is a important social duty. Do you want old people to starve?

  • ¢||

    instruments or instrumentalities

    As found in Commonwealth of Massachusetts v. King Diamond, both the possessed and the demons or forces that possess them are engaged in interstate commerce.

  • ||

    She didn't answer the damn question, she will get confirmed despite not answering the question, and she will do whatever the hell she feels like doing once confirmed and in her lifetime appointment position, even if it contradicts her statements under oath in these hearings.

  • ||

    Typical Senator trying to be smart, and botching it.

    A simple "Ms. Kagan, do you believe there are any limits on the federal government's power to regulate economic activity? If so, could you give a principled explanation of those limits?"

    But no, like a half-smart doofus, he has to lunge for cute soundbite, and fail.

  • ||

    Coryn and Coburn both asked the broader question, but the problem is that all you get for that is a legal lesson that won't tell you where Kagan stands.

    For example,

    Now as I talked about with Sen. Cornyn 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 non-economic activities and that’s the teaching of Lopez and Morrison that the Congress can’t regulate non-economic 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.
  • ||

    Thanks, J.

    I guess that kind of blather is about what is to be expected.

    I suppose one more crypto-authoritarian on the Court won't really make that much difference.

    Especially when I'm in Panama, have converted my assets to gold, buried the gold in the jungle, revoked my citizenship, and told the IRS to go fuck itself.

  • Greener grass||

    I can't wait to hear which citizenship you will choose.

  • ||

    I will never forgive Scalia for Raich.

  • ||

    No balls. Basically he did it because he thinks that since everyone is used to the law being what it is, it should stay that way forever even though it is wrong. It was an absolutely terrible decision and an even worse rational.

  • ||

    Basically he did it because he thinks that since everyone is used to the law being what it is, it should stay that way forever even though it is wrong. It was an absolutely terrible decision and an even worse rational.

    I think he did it because he opposes marijuana, medical or other. and he is a results oriented jurist.

    There was no way Scalia was going to stop the feds from "regulating" marijuana, regardless of any principles.

  • ||

    I think you are wrong. He is not as results oriented as you think he is. He is very clear about his disire for the law to be consistent and for long established precedent to be followed whenever possible. He really thinks chaos will break out if we ever went back to the Lockner standard. I have heard him speak about it and he seems genuinely committed to the idea. You just can't accept that he could be wrong rather than some evil hack.

  • ||

    I've read Scalia on this. He takes deference to precedent too far, especially as Justice. While there is definitely value in stability and predictability in the law, at some point you just start repeating, and enshrining, the errors of your predecessors.

  • ola||

    if he was "very clear about his disire for the law to be consistent and for long established precedent to be followed whenever possible" then he should have followed the much longer precedent of the federal government staying the hell out of mj prohibition. It wasn't till CSA that the CC was used as justification. The country's been around a lot longer than that. For christ sakes use the precedent of constitutional amendment for prohibition if you want to be "very clear about his disire for the law to be consistent and for long established precedent to be followed whenever possible".

  • The V-8 Lobby||

    We remind you that a single V-8 Berry Splash contains three servings of vegetables.

  • ||

    Is the same true for a single V-8 mixed with vodka, Worcestershire sauce, a little bit of pickle juice, a squeeze of lime, some prepared horseradish and a dash of hot sauce, topped with some fresh-ground pepper and celery salt? And if I were to put a stalk of celery in it as well, would that make it four servings?

  • WTF||

    Damn, that sounds good. Make me one while you're up.

  • robc||

    Bloody Mary's combine two of my least favorite things...vodka and tomato juice. Blah. Now rum and OJ, that works.

  • In Time Of War||

    Drinks with recipes are for girls. Drinks with ice cubes are for almost girls.
    Real men drink straight out of the bottle and they don't share.

  • Jeff P, Man||

    Real homeless men drink out of the bottle.

    Two ice cubes, then two fingers of scotch. Let sit for 60 seconds. Sip, the sigh deeply.
    Best in a white shirt. Ideal on a veranda but any porch/balcony varient will do.

  • robc||

    Replace the scotch with bourbon and your have the right idea. The ice is optional.

    WTD do the scots know about making whiskey? Nothin. Next you will be telling me that the Germans can make beer.

  • robc||

    WTD?

    What the Duck?

  • Throw||

    cap away when you first open it. Real men don't save it for later.

  • The Gobbler||

    If we're supposed to be concerned about people's health, then why were the last two SCOTUS nominees obease women?

    Kagen? Can the government force me to eat 3 servings of vegetables each day? FUCK NO. No way I'm scaling down from 35 servings per day. No. Fucking. Way. BTW, they're best when slathered in pure, sweet cream butter.

  • ||

    Where have you been all day?

    I have done as you asked.

  • The Art-P.O.G.||

    Dave really looks like he's enjoying himself down there, NTTIAWWT.

  • The Gobbler||

    Sleeping.

    Nice!

  • The Gobbler||

    BTW, Did you guys see this Iowahawk piece about JournoList? Very funny.

    http://bigjournalism.com/dburg.....breitbart/

  • Mike M.||

    Awesome. Totally f*cking awesome.

  • Best TOWWNBN line||

    "SPENCER ACKERMAN: I thought you were using ProActiv"

  • Gilbert Martin||

    Under the bogus principle that regulating interstate commerce includes the power to regulate anything that "has an effect" on interstate commerce there is no such thing as a noneconomic activity.

    Virtually every aspect of existence on the planet could be claimed to have an economic component to it.

    If everyone were required to eat a certain amount of fruits and vegetables, that would change the demand level for those commodites and affect the price of goods. Bingo - economic impact.

    The whole thing is a crock of shit.

  • ||

    Yup. How about this: since male homosexual sodomy is a major cause of AIDS, which burdens the health care system, then the feds have the right to ban it. It makes more sense than Wickard!

  • The Gobbler||

    **golf clap**

  • ||

    Exactly.

    Right now, I am engaging in a shitload of economic activity through not buying all the stuff I am not buying.

  • Hobie Hanson||

    A law that requires people to eat three fruits and vegetables a day would be wrong, because it would force the poor to spend money on six fruits and vegetables per day. A better law would be to prohibit people from eating anything besides fruits and vegetables.

  • ||

    And giving a sh*t.
    However, if you don't give a sh*t, would that?
    Unfortunately, as not doing something (e.g., buying health insurance) can be interpreted as "economic activity" I can only sadly conclude that we are up sh*t creek.

  • ||

    so they are saying my purpose in life is to serve corporations and profit protection? so my life and liberty and property is allowed only as long as i don't hurt the profits of corporations?

    so as long as I serve the interests of corporations first then everything else is well everything else? so they are protecting corporated power/profit and not my life and liberty and pursuit of happiness/property?

    so if I decided to be self sufficent and need less corprate services then I am in violation of the corp rights/commerce clause? wow where did they come up with that one? where is the bonafide contract to not interere with corporation profits/economic activity by exercising my God given rights? where is the contractual obligation to care about corporate power enhancement?

    seabird

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