Tossing A Few Legal Queries Into The 'Void'

Given Elena Kagan's aversion to "vapid and hollow" confirmation hearings devoid of "legal analysis," beginning Monday she might relish answering these questions:

• It would be naughty to ask you about litigation heading for the Supreme Court concerning this: Does Congress have the right, under its enumerated power to regulate interstate commerce, to punish the inactivity of not purchasing health insurance?

So, instead answer this harmless hypothetical: If Congress decides interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?

• The government having decided that Chrysler's survival is an urgent national necessity, could it decide Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?

• If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?

• Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

"Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?"

Will raised a lot of good questions that Kagan should have to answer, if nothing more than to demonstrate her ignorance. In the above question, Obama would give lip service to the concept of limited Government, and work like hell to make sure that such a thing never impedes whatever he wants to accomplish.

KEEPER!

Best:

“If Congress decides interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?”

But the real winner is:

“Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce?”

Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?

Justices Thomas and Scalia have both written on the reach of the Commerce Clause:

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Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything–and the Federal Government is no longer one of limited and enumerated powers.

Justice Thomas, dissenting, Gonzalez v Raich

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...the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

J. Scalia, concurring, Gonzalez v Raich

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