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Big Sis Elena Kagan wants to tell you what to eat?

Republicans are convinced that they scored a direct hit on Elena Kagan when she apparently refused to directly answer Senator Tom Coburn's question: Whether it's acceptable to dictate what Americans eat.

Right wing media figures like Drudge and Hannity are pushing this one hard in an effort to cast Kagan as a would be Big Sis who craves a Big Government Nannystate. "Can the government tell you what to eat?" blared Drudge.

But it turns out they are relying on a truncated video that cuts off Kagan's reply. This is the video they're circulating:

In the exchange, Senator Coburn asked Kagan whether it would "violate the commerce clause" if Congress passed a law mandating that "you have to eat three vegetables and three fruits every day."

After Kagan cracked that this would be a "dumb law," Coburn continued: "Do we have the power to tell people what they have to eat every day?" Kagan squirmed and didn't immediately answer. This is the basis for the current criticism.

Turns out, though, that Kagan did answer the question a bit later in the exchange: She suggested that this is a flawed line of inquiry because the commerce clause regulates economic activity, and not personal choices like one's dietary preferences.

"I think that there are limits on the commerce clause," Kagan said, adding approvingly that the court has in the past articulated limits that are "primarily about non-economic activity and Congress not being able to regulate non-economic activity."

Putting this aside, as Michael Tomasky notes, this exchange really does highlight a "classic argument about individual liberty vs. the common good." But of course Coburn's question -- "do we have the power to tell people what they have to eat every day?" -- isn't really designed to illuminate this argument or even to elicit an answer from Kagan. It's meant to dumb down the discussion to the point where an answer is pretty much impossible. And it got the desired effect.

By Greg Sargent  |  June 30, 2010; 1:54 PM ET
Categories:  Senate Republicans , Supreme Court  
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this will be red meat for the rightwing republican fringe, but it will backfire with everyone else.

the full exchange will be played against the truncated one and anyone trying to get play out of this will look utterly ridiculous.

Posted by: blahgblogwordpresscom | June 30, 2010 2:02 PM | Report abuse

Kagan Reply: In A Nutshell.

I can not comment on a hypothetical.

You enact your Moronic Law, and then we will have something for the Court to evaluate.


Why is Coburn whining, to a person who is not yet on the Supreme Court, about the Commerce clause, when he already has the Gang Of Five Right Wing Catholic Men, shredding the Constitution.

If Coburn was all that concerned about the Deficits, he should have insisted that Bush/Cheney maintain Pay As You Go.

Coburn did not, so he is just a completely partisan phony.

Posted by: Liam-still | June 30, 2010 2:08 PM | Report abuse

Compare And Contrast;

The Two Faces Of Coburn.

According to Senator Coburn,

He is worried that The Government might decided to pass a law, ordering people to eat a certain number of Vegetable each day, even though no one has introduced his imaginary scary tale legislation.


Senator Coburn does want the Government to order all pregnant women to carry their babies to term, regardless of if the were impregnated through rape, or incest, or if carrying the baby to term would kill the mother.

Posted by: Liam-still | June 30, 2010 2:15 PM | Report abuse

@Greg: "But of course Coburn's question... isn't really designed to illuminate this argument... It's meant to dumb down the discussion."

I'm, not sure how Greg knows this for a fact? Seemed that Coburn was pursuing a line of questioning intending to highlight how broadly she might interpret the Commerce Clause.

Posted by: sbj3 | June 30, 2010 2:17 PM | Report abuse

heh, Liam, that's perfect. Thanks. Glad you haven't retired yet :)

and blahgblogwordpresscom, makes sense -- it probably is just designed as fodder for the base.

Posted by: Greg Sargent | June 30, 2010 2:17 PM | Report abuse

ya, but he doesn't think the birthing vessels are real people, certainly not like corporations or something.

Posted by: blahgblogwordpresscom | June 30, 2010 2:22 PM | Report abuse


are you really fearful of some new mandatory vegetable consumption act?


Posted by: blahgblogwordpresscom | June 30, 2010 2:24 PM | Report abuse

@blahblahblah: "Are you really fearful of some new mandatory vegetable consumption act?"

Do you really think that's what this is about?


Posted by: sbj3 | June 30, 2010 2:27 PM | Report abuse


are you really fearful of some new mandatory vegetable consumption act?

Why not? They already force you to buy heath insurance and eating veggies is a good idea so why not make them eat veggies?
You can say it's going to bring down health care costs and fine them like a good libreal would.

Posted by: obrier2 | June 30, 2010 2:33 PM | Report abuse


your comments have generally been serious and civil, but the jibe at my screen name is quite juvenile. please don't sink to the neanderthaller level of so many of the other rightwing commenters here.

the question, despite being silly on it's face, is comparing apples to golf balls. as kagan said, such an bil would be dumb. the health insurance mandate regulates economic activity, not personal dietary choices.

fwiw, medicare for all would eliminate the need for that, but republlicans and blue dogs scrapped that.

this was just a sop to the rightwing fringe.

Posted by: blahgblogwordpresscom | June 30, 2010 2:34 PM | Report abuse

Reality Check:

Because of the Bush/Cheney caused Global Economic Depression,

Young, first time job seekers are finding it almost impossible to get hired.

Along comes Full Body Nicotine Stain Boehner, with his proposal to not allow the older workers to retire, until they reach the age of Seventy.

Think about how much harder it would become for young people to get their first full time career jobs, if the oldest workers, are forced to keep their jobs, for another five years.

If the old are kept on, their will be no room made for the newcomers to the job market. Especially since Bush/Cheney did not create a single net job, during their two full terms, while the population of work seeking Americans ,expanded by millions of people.

Posted by: Liam-still | June 30, 2010 2:36 PM | Report abuse

Obama is absolutely TEARING IT UP in Racine.


Posted by: Ethan2010 | June 30, 2010 2:41 PM | Report abuse

@blah: "This was just a sop to the rightwing fringe."

I obviously disagree because there is so much serious discussion going on today regarding the extent of the Commerce Clause.

"The health insurance mandate regulates economic activity, not personal dietary choices."

And Coburn went on to clarify - did he not? "What if the bill says "we've imposed this requirement to reduce health care costs?" Kagan's answer was nonresponsive.

Posted by: sbj3 | June 30, 2010 2:52 PM | Report abuse

It's not impossible at all. Of course an answer is possible.

The answer is NO, you dimwit. The government does not have that power. Or at least the government SHOULD not have that power. The government can regulate the foods we eat, but even in doing that they overstep their bounds constantly. But they can't say, "you must eat this."

It is a simple question with a simple answer and she couldn't provide it.

Posted by: etpietro | June 30, 2010 3:15 PM | Report abuse


How about limiting the Commerce Clause in the criminal realm? One of the most clear Const principles is that the federal government does not have a general police power and that crime control is left to the states. Yet Congress for years has used the Commerce Clause to make everything under the sun a federal criminal case. Coburn is worried that the federal government will tell him to eat vegetables: what he should be worried about is being put in jail if he doesn't eat those vegetables. The GOP wants unlimited federal power to imprison Americans and kill foreigners. But doing something useful and constructive? Communism!

Posted by: wbgonne | June 30, 2010 3:15 PM | Report abuse

So Coburn doesn't think the federal government should be in the business of dictating what I eat or drink?

Fine. Pass the plate of pot brownies . . .

Oh, that's right. Republicans are completely supportive of telling me what I CAN'T do.

Posted by: bearclaw1 | June 30, 2010 3:17 PM | Report abuse

The court just told us that we can't prohibit handgun ownership in the city.

Would telling us to eat fruits and veggies be a radical departure?

Coburn is an idiot.

Posted by: BGinCHI | June 30, 2010 3:20 PM | Report abuse

Senator Cornyn is currently talking up the Solomon amendment, that coerces Colleges into allowing the military to recruit on campuses, or they will have their funding cut off.

Republicans are very selective, when they complain about the danger of Government dictating to people and institutions.

They love it, when it involves the military, or when they want to control women's personal reproductive health decisions.

Posted by: Liam-still | June 30, 2010 3:34 PM | Report abuse

I wish she would have said something about the fact that we use the commerce clause to tell Americans they can't grow and then smoke a weed without ever leaving their basement, much less engaging in interstate commerce.

Posted by: flounder2 | June 30, 2010 3:45 PM | Report abuse

The irony is that the Supreme Court ruled in Wickard v. Filburn, back in the 1930s, that what one chooses to eat *is* economic activity subject to regulation. I would say that it's been settled law for a long time that Congress, while it probably couldn't *force* you to eat vegetables each day, could almost certainly tax you for not doing so.

But that would be a Bork moment, where a candidate makes a true but indefensibly horrifying statement of what the law really is.

Posted by: tomtildrum | June 30, 2010 4:16 PM | Report abuse

Coburn's question was fair and highly relevant. Kagan's answer missed the mark. These are indeed worrisome times when when wacko's argue that it is constitutional to federally mandate the purchase of health insurance, but gun ownership rights under the 2nd amendment can be completely eliminated by the states.

Posted by: doug7772 | June 30, 2010 5:38 PM | Report abuse


What State has prohibited all ownership of firearms? Who, specifically, has advocated that States can ban all gun ownership?

By the way, the Commerce Clause argument for the health insurance mandate is an easy one: what happens when an uninsured person becomes gravely ill or is taken to the emergency room after an accident? In many cases, the rest of us get to pay the bill through higher medical costs. There clearly is an impact on interstate commerce. You may not like the health insurance mandate from a policy standpoint, but what is your constitutional argument?

Posted by: bearclaw1 | June 30, 2010 6:21 PM | Report abuse

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