Kagan signals legal support for health law

Jul 1 2010

The Washington Post:  Supreme Court nominee Elena Kagan suggested at her confirmation hearing Tuesday "that a controversial requirement in the new federal health-care law that most Americans obtain insurance has a legal basis -- a question that is likely to come before the courts." In answering Republican senators, Kagan "signaled" that she supported "enacting a health-care law that for the first time will require most legal residents of the United States to obtain insurance. Some Republicans contend that such a mandate is unconstitutional, and GOP-led states are threatening to file lawsuits challenging the provision," according to the Post.

"Sen. John Cornyn (R-Tex.) asked Kagan whether she supports the argument that the mandate is allowed under the Constitution's interstate-commerce clause. Kagan declined to address the requirement but made clear that she supports an expansive reading of Congress's regulatory authority" (Goldstein and MacGillis, 6/30).

The Associated Press quotes Kagan saying "the state of the law is to grant broad deference to Congress," and the AP adds: "she says under the Constitution, courts will generally step in only if the legislation concerns a non-economic activity or it involves an area traditionally handled by the states" (6/29).

Politico: Republicans criticized Kagan's response to Oklahoma Republican Sen. Tom Coburn, R- Okla., who asked the nominee if the Congress passed a bill that required Americans to "eat three vegetables and three fruits every day" that mandate would violate the Constitution's Commerce Clause. "'Sounds like a dumb law,' Kagan replied. '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.'"

Republicans argued that Kagan's response suggested "that Congress had carte blanche to create a nanny state that would regulate Americans' day-to-day lives. ... While the exchange may have seemed like an intellectual joust, the subtext was fairly clear: Coburn views the so-called individual mandate in the recently-passed health-care legislation as an unconstitutional expansion of the federal government's authority" (Gerstein, 6/29).