Several times, Kagan has been asked her view of the scope of Congress’s power under the Commerce Clause. In the 1930s, a limited view of the Commerce Power was used to invalidate New Deal legislation. After President Roosevelt announced his proposal to expand the number of Justices, the famous “switch in time to save Nine” occured, and the Court repudiated its prior decisions and adopted a much broader view of Congress’s power.
That issue is back with a vengeance today.
The challenges to the health care reform law pending in courts all over the country argue that the bill exceeds Congress’s power. (Disclosure: I filed a brief in one of those cases in support of the bill’s constitutionality.)
Senator Coburn asks “could Congress pass a law requiring Americans to eat vegetables and fruits three times a day”? Kagan says, the fact that a law is dumb does not make it unconstitutional.
But she points out that the Court has said that the Commerce Power extends broadly in the commercial context, and the cases invalidating federal statutes have involved statutes not tied to economic activity. Coburn’s hypothetical might fail under that standard.
But 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.
Coburn’s time is up, but he’ll be back on this issue.