Is It Constitutional? Well, It's Dumb, but That's Not the Same Thing. All Right Then.


In keeping with her newly acquired conviction that Supreme Court nominees should never say anything that might indicate how they would perform on the Supreme Court, Elena Kagan yesterday gave a classic nonanswer to a question that Sen. Tom Coburn (R-Okla.) posed about the Commerce Clause:

Coburn: If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that's now the law of the land, got to do it, does that violate the Commerce Clause?

Kagan: Sounds like a dumb law. But I think that the question of whether it's a dumb law is different from whether the question of whether it's constitutional, and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless.

There is nothing objectionable in Kagan's response, except that it does not address the question Coburn asked, which is less fanciful than it might seem. As I have argued, the constitutional logic needed to justify the individual health insurance mandate as an exercise of the federal government's authority to regulate interstate commerce is so elastic that it can be stretched to cover highly intrusive laws regulating what heretofore were considered private choices. But I suppose I am only reinforcing Kagan's excuse for stonewalling: Because the Court might one day consider a law along the lines of the one Coburn described, she cannot provide any "hints" as to how she might view its constitutionality. The only questions she can answer are ones that are utterly irrelevant to any case she might conceivably confront after she is confirmed.

The Atlantic has a roundup of reactions to the fruit-and-veggie exchange.