With the retirement of Justice John Paul Stevens from the Supreme Court, President Obama’s nominee Elena Kagan is now testifying before the Senate during her confirmation hearings. While such Q&A sessions are generally boring and typically see nominees offering vague and non-committal answers, Kagan served up some fresh bluntness yesterday. When Senator Tom Coburn (R-OK) asked her about whether the federal government could force people to eat a certain way (akin to making the USDA’s Dietary Guidelines for Americans mandatory), Kagan was skeptical:
Coburn: If I wanted to sponsor a bill and it said Americans you have to eat three vegetables and three fruits every day […] does that violate the Commerce Clause?
Kagan: Sounds like a dumb law…But I think the question of whether it’s a dumb law is different from the question of whether it’s constitutional. And I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.
We’re glad to hear Elena Kagan thinks forcing Americans to follow a government-prescribed diet sounds stupid, because it is. (Sorry, Michael Jacobson.) But that’s the exact philosophy of command-and-control espoused by “food police” activists like Kelly Brownell: They want to create new laws and abuse the tax code to mold our meals for us.
That said, the second part of Kagan’s response leaves us hanging. Might a law telling us what to eat and drink—despite being a dumb law—pass constitutional muster? Hopefully she will clarify her remarks before the hearings are over. You never know if Brownell and his likeminded comrades will get a group of policymakers to buy into his Big Government ploy. Since an appointment to America’s highest court is for life, Kagan and her soon-to-be fellow Justices may eventually be asked to make such a decision—whether we like it or not.