Coburn grills Kagan: Could Congress require people to eat certain foods under the Commerce Clause?

So the rumors were true — something interesting did get said at today’s interminably boring hearing. Don’t blame me for the bizarre editing decision here to end the clip before she had a chance to answer his question — I’m just giving you what I’ve got — but according to TPM, we’re not missing much. Apparently she simply dodged the question.

Coburn says, what if the bill says “we’ve imposed this requirement to reduce health care costs.” Kagan says, I’ve given you the principles I would apply and I don’t feel I can go farther.

Coburn then says that the lack of limits on Congress’s power–the refusal to enforce the Framers’ original intent, in his view–has led to a federal government bigger than anything the Framers could have anticipated. And that has led to the budget deficit that burdens Americans today.

Kagan replies that one of the Court’s earliest decisions adopted a broad view of the Commerce Clause.

Normally this would be a chance to declare her “out of the mainstream,” but let’s face it: The idea that Congress can do anything its black little heart desires so long as there’s some glancing relationship to commerce is perfectly within the Democratic mainstream — and, in certain cases, the Republican mainstream too. In fact, some legal experts expect the inevitable Supreme Court ruling on O-Care’s individual mandate will break 9-0 or 8-1. I’m skeptical of that, but after the Raich decision, would it surprise you?

In other news about today’s boring Kagan dodges, she acknowledged that judges should look at foreign law but hinted that it should only be done in cases touching on international matters. Oh, and she admitted that Miguel Estrada is perfectly qualified to sit on the appellate bench or the Supreme Court. What a treat to find that out years later. Exit question via Newsweek: Seriously, why do we even hold these hearings?

Blowback