As lawmakers try to hammer out a compromise on overhauling regulation of financial markets, Supreme Court nominee Elena Kagan said today their power to do so has few limits.
"Congress has broad authority under the commerce clause, and certainly most regulation of financial markets that I could think of would substantially affect interstate commerce," Kagan said at her confirmation hearing, under questioning by Sen. Ted Kaufman (D-Del.).
Responding to questions for a second consecutive day, Kagan also expanded on comments she made Tuesday about the Constitution’s commerce clause. As she did earlier, she referenced Justice Oliver Wendell Holmes Jr., who she said personally opposed laws in the early 20th Century designed to regulate the economy but did not vote to strike them down.
“He said: ‘Look, I might think that this legislation is unwise, but this is a choice for the American people; and if it turns out that I’m right and they’ve done unwise things, they’ll correct it,’ ” Kagan said.
She added that courts still have an important role in keeping Congress within certain constitutional boundaries. “But in fulfilling that role,” she said, “courts should realize they’re not the principal players in the game.”