On Tuesday evening, Senator Tom Coburn (R-Okla.) posed a hypothetical question to Supreme Court nominee Elena Kagan: If Congress passed a law that said Americans “have to eat three vegetables and three fruits, every day … does that violate the Commerce Clause?”
“Sounds like a dumb law,” Kagan replied.
“Yeah, I got one that’s real similar to it that I think is equally dumb,” Coburn shot back, referring to Obamacare’s mandate requiring individuals to buy health insurance. “I’m not going to mention which one it is.”
Kagan wouldn’t say whether or not she believes the Commerce Clause allows the federal government to pass a law requiring Americans to eat fruits and vegetables.
KAGAN: I think that the question about whether it is a dumb law is different from the question of whether it’s constitutional. And I think the courts would be wrong to strike down laws that they think are senseless just because they’re senseless.
COBURN: Well, I guess the question I’m asking you is: Do we have the power to tell people what they have to eat every day?
KAGAN: Senator Coburn, um…
COBURN: I mean, what is the extent of the Commerce Clause? We have this wide embrace of the Commerce Clause, which these guys who wrote this [The Federalist Papers] never ever fathomed that we would be so stupid to take away our liberties away by expanding the Commerce Clause this way.
A minute-long clip of the aforementioned exchange between Coburn and Kagan has been making the rounds. If you have time, it’s worth watching the full 10-minute exchange on the Commerce Clause, which begins at the 20:00 mark in this video. Kagan doesn’t offer a clear answer, but Coburn continues to make some compelling points:
(Or better yet: watch the entire 30-minute session of Coburn questioning Kagan.)