Supreme Court

A Good Question for Elena Kagan

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Writing at Forbes, the Cato Institute's Roger Pilon has a good suggestion for Elena Kagan's Supreme Court confirmation hearings:

Does she believe, for example, that Congress' power to regulate interstate commerce—granted mainly to enable Congress to ensure a free national market in light of state impediments then existing—allows Congress to order individuals to buy health insurance from private vendors? Absent that original understanding of the power, which limited its scope, it's hard to find any limits. Surely the modern reading of the power, that Congress can regulate anything that "affects" interstate commerce, is bounded only by one's judgment of that amorphous standard—by one's (value) judgment about what does or does not affect interstate commerce.

Kagan will not and should not answer that question, of course, because with more than a score of states now suing the government over ObamaCare, the question will soon be before the Court. Nevertheless senators on the Judiciary Committee should press her more generally on the commerce power through which the modern regulatory state has arisen, not least because so little is known about her understanding of that and of so much else besides.

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  1. Q: Do you believe that Congress’ power to regulate interstate commerce?granted mainly to enable Congress to ensure a free national market in light of state impediments then existing?allows Congress to order individuals to buy health insurance from private vendors?

    KAGAN: I’m sorry but I can’t comment on specific matters that may come before the Court.

    Q: Well, generally speaking, do you favor a more broad or more strict interpretation of the Commerce Clause?

    KAGAN: I’m sorry but it’s impossible to answer so broad a question without placing it in some specific context.

    1. In other words, I’m tapdancing around that one because if I answer it truthfully, I won’t get this job.

      1. What makes you think she won’t get the job? The only way she won’t get the gig is if she answers that there are meaningful restrictions to the commerce clause power, and what is the chance she is going to believes that?

  2. Commerce Clause–limited or unlimited grant of power? Discuss.

    1. Originally limited, since perverted to unlimited.

  3. “Absent that original understanding of the power, which limited its scope, it’s hard to find any limits”
    Well, its hard to find limits because the only thing these people believe the constitution limits is the right to bear arms.
    Thats it. Or to put it another way, no limits on gubermint but plenty of limitis on citizens.

  4. Does any Senator ever follow through on one of these suggested questions? (This is a rhetorical question. No need to follow through on it.)

  5. Kagan will not and should not answer that question

    Oh, I disagree.

    Exactly what harm will be done to the judicial process by having judges disclose their beliefs about the applicable law before any case is before their court?

    The current kid gloves treatment of SCOTUS nominees is a shameful farce, designed to ensure that the Senate cannot give informed “advice and consent” to a nominee.

    1. It is absolutely and categorically a mass dereliction of constitutional duty when the Senate fails to grill the hell out of every candidate, regardless of party. Federal judges–particularly Court justices–are extremely powerful and get lifetime tenure. They should be fully vetted by the president prior to nomination (which they really aren’t except in the political sense), and the Senate should probe, probe, offend, probe, ask whether the nominee’s mother was a prostitute, probe, probe, and, when in doubt, reject the nominee.

      Instead, it’s become practically a rubber-stamping process.

      1. Wait till someone nominates Janice Rogers Brown to the Court. That stamp will harden up right quick.

        1. Congress, if they were doing their duty, would refuse to confirm any nominee that didn’t forthrightly answer specific questions.

          Giving them a pass on ducking questions is a dereliction of duty.

        2. Why? She’s a wise, black woman, the child of sharecroppers.

        3. Won’t happen, Tulpa. Janice Rogers Brown is not the right kind of black candidate; she is not a liberal.

    2. It’s within the Senate’s power to refuse to approve a nominee who does not answer their questions. If they confirm a nominee without having their questions answered, they are giving silent consent.

  6. Can we ask her this-

    “In Gonzales v. Raich Justice Clarence Thomas noted in his dissent, “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything?and the Federal Government is no longer one of limited and enumerated powers.” Do you agree or disagree with this assessment?”

    1. “Senator, I understand Justice Thomas’ concerns, but our government is clearly bound and limited by the principles of natural law–namely, the laws of physics.”

    2. “Many busy executives ask me, ‘What about the Job Displacement Market Program in the City of the Future?’ Well, count on us to be there! Because, if we’re lucky tomorrow, we won’t have to answer questions like this ever again.”

      … Hobbit

  7. I suggested the following for the Sotomayor hearings, but it was not accepted. Maybe this time …

    Is this “racist”? Why or why not?

  8. Kagan will not and should not answer that question, of course, because with more than a score of states now suing the government over ObamaCare, the question will soon be before the Court.

    You can just bet she already has answered that question in the affirmative and confidentially to the man who is appointing her – else Obama whould not have submitted her name. For anyone who believes otherwise I have some prime, rich, green, farm land out in far west Texas at a dirt cheap price which you might like to buy. Did I mention that it is very well watered, too?

  9. god damn, if Peter Schiff gets elected to the senate, then every supreme court confirmation during his tenure will have a “do you believe that states should be required to only accept gold and silver as legal tender?” question.

    That ought to be REALLY interesting.

  10. Under new Bill, Health insurance is a must, but now you can easily find health insurance for your family under $40 http://ow.ly/1Jkvo

  11. If Kagen says that the commerce clause grants the federal government broad power over almost everything, that’s just what the Congress critters want to hear. They tend to be pretty hostile to claims that their power is limited. Not unlike, oh, almost every politician everywhere from any time in history.

  12. We don’t have to ask. Since The Great Obama appointed her, we know what the true answer will be.

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