{"id":5795,"date":"2010-07-11T08:27:55","date_gmt":"2010-07-11T15:27:55","guid":{"rendered":"https:\/\/nevadanewsandviews.com\/?p=5795"},"modified":"2010-07-16T08:22:08","modified_gmt":"2010-07-16T15:22:08","slug":"kagans-commerce-clause","status":"publish","type":"post","link":"http:\/\/nevadanewsandviews.com\/kagans-commerce-clause\/","title":{"rendered":"Kagan’s Commerce Clause"},"content":{"rendered":"

(Bill Wilson\/ALG)<\/em> – \u201cSenator Coburn, um\u2026\u201d That was all Supreme Court nominee Elena Kagan could muster in response to what should have been a simple question from Oklahoma Senator Tom Coburn. He was asking of Kagan, \u201cDo we have the power to tell people what they have to eat every day?\u201d<\/p>\n

It\u2019s actually a good question.<\/p>\n

Considering the expansive interpretation of the so-called Commerce Clause in Article I, Section 8 of the Constitution by federal courts over the past century, how Kagan interprets it could very well determine if Congress can, for example, compel individuals to eat fruits and vegetables as Coburn asked.<\/p>\n

Notwithstanding prior case law, the Clause\u2019s expansion (and abuse) largely began with the catastrophic Supreme Court decision rendered in 1942, Wickard v. Filburn. That ruling upheld a law that forbade an Ohio farmer from growing wheat in excess of a federal quota to feed to his cows. The excess production, said the Court, affected the price of wheat, and thus affected interstate commerce. So, Congress could prohibit it.<\/p>\n

Once an innocuous power to regulate commerce \u201camong the several States,\u201d the Commerce Clause was at once transformed into an all-encompassing power for government to wield against the people. In Men in Black, Mark Levin of the Landmark Legal Foundation notes that \u201cfor the next fifty years, the Supreme Court used the commerce clause as legal justification to uphold federal intrusion into \u2018just about anything.\u2019\u201d<\/p>\n

In short, whatever limits once existed on the Commerce Clause disintegrated in the Filburn ruling. You name it. The environment. Guns. Energy. Health care. All manner of regulation has since fallen under this seemingly limitless umbrella.<\/p>\n

Under ObamaCare, the doctrine has even been invoked to justify using the power of law to force individuals to purchase health insurance. After December 31st, 2013, every American will be required to carry health insurance or face a penalty.<\/p>\n

Hence Senator\u2019s Coburn\u2019s question, who wanted to know whether Kagan thought Congress has the power to pass a law requiring individuals to buy and eat three fruits and three vegetables every day. Because, if she thinks that, then she sees no limit to the Commerce Clause.<\/p>\n

The Obama Administration claims the individual mandate is constitutional. \u201cThe Commerce Clause of the Constitution does say that people need to meet certain requirements,\u201d said Nancy-Ann DeParle, director of the White House Office of Health Care Reform, adding, \u201cThe requirement to have coverage is one of them.\u201d<\/p>\n

Never mind that the Commerce Clause says no such thing. To wit, it says \u201cCongress shall have power\u2026 [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes\u201d.<\/p>\n

Disregard that, because Elena Kagan apparently will not pay it any heed, either.<\/p>\n

The most she would say about the hypothetical law was that it was \u201cdumb\u201d and \u201csenseless\u201d, but that as a Justice she could not overturn it just because she thought it was so. She dodged, yes, but in the process she revealed her hand.<\/p>\n

Kagan refused an opportunity to declare outright that it was indeed beyond the purview of the Congress\u2019 enumerated powers to pass a law regulating what we must eat and when we have to eat it under the Commerce Clause.<\/p>\n

Of the Clause itself she said, \u201cthe Commerce Clause has been interpreted broadly. It\u2019s been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce, but it\u2019s also been applied to anything that would substantially affect interstate commerce.\u201d<\/p>\n

Coburn replied with a potential justification that Congress might use, that eating three fruits and three vegetables every day would reduce health care costs by 20 percent. Coburn claimed the price change would affect commerce.<\/p>\n

Therefore, under Kagan\u2019s reading, it would be constitutional. She said, \u201cthe principles that I\u2019ve given you are the principles that the Court should apply\u2026\u201d Including \u201canything that would substantially affect interstate commerce\u201d in the Court\u2019s view.<\/p>\n

Which could be, well, just about anything. Even a law requiring folks to eat three fruits and vegetables every day. The truth is, although in testimony Kagan acknowledged some theoretical limit to the Commerce Clause \u2014 although she failed to outline it \u2014 for all intents and purposes she sees no functional limit to its use.<\/p>\n

That is why Kagan\u2019s nomination should have all right-thinking Americans concerned.<\/p>\n

(Bill Wilson is the President of Americans for Limited Government)<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

(Bill Wilson\/ALG) – \u201cSenator Coburn, um\u2026\u201d That was all Supreme Court nominee Elena Kagan could muster in response to what should have been a simple question from Oklahoma Senator Tom Coburn. He was asking of Kagan, \u201cDo we have the power to tell people what they have to eat every day?\u201d It\u2019s actually a good […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/posts\/5795"}],"collection":[{"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/comments?post=5795"}],"version-history":[{"count":2,"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/posts\/5795\/revisions"}],"predecessor-version":[{"id":5806,"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/posts\/5795\/revisions\/5806"}],"wp:attachment":[{"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/media?parent=5795"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/categories?post=5795"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/nevadanewsandviews.com\/wp-json\/wp\/v2\/tags?post=5795"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}