Kagan's take on just how much power Congress has

Although she has spent most of her time before the Senate Judiciary Committee avoiding giving direct answers to questions, there have been a few exchanges which shed some light on her thoughts on some pretty important issues, (or confirm suspicions, as the case may be).

The exchange below was between Kagan and Oklahoma Senator Tom Coburn, which touches on Kagan's thoughts on the constitutional limits on the power of Congress.

Coburn: If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the Commerce Clause?

Kagan: Sounds like a dumb law.

Coburn: Yeah, but I got one that’s real similar to it that I think is equally dumb. I’m not going to mention which it is.

Kagan: But I think that the question of whether it’s a dumb law is different from whether 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.

Of course it's true that there are "dumb" laws that are not unconstitutional, (probably half of the federal registry), but it's troubling (or revealing) that she chose to respond that way and avoid taking a position on the Commerce Clause - which is the hole through which liberals have driven bigger and more intrusive government for generations.

In other words, she chose not to offer any thoughts at all on whether there ARE any limits to congressional power via the Commerce Clause.

Given how fundamental that issue is to our federal constitutional structure, it tells us a great deal about where her sympathies lie.

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