A Good Question for Elena Kagan


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.