The Democrats' newly enacted health-care overhaul appears destined to some to end up before the Supreme Court, because of its mandate that individuals buy insurance. But Elena Kagan isn't about to give her opinion on its constitutionality.
Sen. Tom Coburn (R-Okla.) asked Kagan about the law in a round-about way late today. He gave her a hypothetical: What if Congress passed a law requiring Americans to eat a certain number of fruits and vegetables?
“Do we have the power to tell people what to eat every day?” Coburn asked.
Kagan, who developed federal policy and weighed in on legislation while in the Clinton White House, said the hypothetical law struck her as a “dumb law.” She added, “Courts would be wrong to strike down laws that are senseless just because they’re senseless.”
Not satisfied, Coburn came at the question again, reading from the Federalist No. 44 about limits on the powers of the federal government. He asked what restrictions there are on Congress’ authority to regulate economic activity under the Constitution’s commerce clause.
But Kagan declined to go much further than to cite the Court’s power to strike down laws that fall outside established parameters. “It is absolutely the case that the judiciary’s job, in Marbury v. Madison’s famous phrase, to say what the law is,” Kagan said.
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