During her confirmation hearings, Senator Coburn asked Supreme Court nominee Elena Kagan if the government has the constitutional power under the Commerce Clause, to require all Americans to eat three vegetables and three fruits a day.
She sidestepped the question by saying it would be a “dumb law,” then added that the question of whether it’s a dumb law is different from the question of whether or not it’s constitutional, implying that she thinks it is.
If Congress passed such a law, we could count on Justice Kagan not to strike it down. That is her kind of judicial philosophy — the kind that says the Commerce Clause essentially permits the government to do anything it wants.
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