Fox News' Stuart Varney advanced the baseless claim that Elena Kagan's statement that Congress' power to write laws regulating interstate commerce "has been interpreted broadly" makes her "far-left." In fact, her comments are in accord with an opinion by conservative Justice Antonin Scalia and a 2005 ruling by a majority of the Supreme Court.
Varney advances
baseless claim that Kagan's Commerce Clause comments make her "far
left"
Kagan:
"The Commerce
Clause
has been interpreted broadly." During Kagan's June
29 confirmation hearing, Sen. Tom Coburn (R-OK) asked
whether a hypothetical law that required Americans to "eat three vegetables and
three fruits every day" would "violate the Commerce Clause." Kagan replied that
it was a "dumb law," but that "the question of whether it's a dumb law is
different from whether the question --
of
whether it's constitutional." She later added:
[I]t is absolutely the
case that the judiciary's job is to, in Marbury v. Madison's famous phrase, to say
what the law is,
and to
make sure
-- I
think I've talked about it as policing the constitutional boundaries and making
sure that Congress doesn't go further than the Constitution says it can go,
doesn't violate individual rights, and also doesn't act
outside its enumerated authorities.
We
live in a government in which Congress' authorities are enumerated in Article
I of the
Constitution, and Congress can't
act except under one of those heads of authority. Now, as I talked about
it
with
Senator Cornyn, the Commerce Clause has been interpreted broadly. It's been
interpreted to apply to regulation of any instruments or instrumentalities or
channels of Congress. But it's also been applied to anything that would
substantially affect interstate commerce. It has not been applied to noneconomic
activities,
and
that's the teaching of Lopez and
Morrison, that
the
court --
that
the
Congress can't regulate noneconomic activities, especially to the extent that
those activities have traditionally been regulated by the states. And I think
that that would be the question that the court would ask with respect to any
case of this kind.
Varney
advances claim that Kagan's interpretation makes her "far-left."
On the June 30 edition
of Fox News' Your World, Coburn
discussed his exchange with Kagan.
Coburn claimed that
her comments indicate that "her embrace of a wide-open Commerce Clause and
whether or not it affects the economy is
just -- it's unbelievable
that she embraces it as far as she does." Varney replied by
asking if her views make her "far-left" and "in line with Justice
[Ruth Bader]
Ginsburg."
Kagan's statement that
the Commerce Clause power is "broad" actually put her in the Supreme Court
mainstream
Supreme
Court has upheld a variety of federal laws under the Commerce
Clause.
The Supreme Court has
upheld a wide variety of laws under the Commerce Clause, including sections of
the
Civil
Rights Act of 1964
and
a regulation restricting the amount
of wheat a person could grow even if used purely for
consumption on the grower's own
farm.
Supreme
Court majority upheld Congress' Commerce Clause power to make it a crime to
possess marijuana grown for personal consumption.
In the 2005 case
of
Gonzales v.
Raich, the
Supreme Court upheld Congress' power to outlaw the possession of medicinal
marijuana that people grow for personal consumption. The case was brought by two
plaintiffs, one of whom "cultivates her own marijuana, and ingests the drug in a
variety of ways including smoking and using a vaporizer." Justice John Paul
Stevens, writing for a five-justice majority that included Justice Anthony
Kennedy, stated that the law was a valid exercise of Commerce Clause power as
part of its comprehensive regulation of the market for
marijuana.
Justice
Scalia also voted to uphold Congress' power to outlaw marijuana grown for
personal consumption.
In a concurrence
in
Gonzales v.
Raich,
Justice Antonin Scalia also agreed that the marijuana law was unconstitutional.
He also affirmed that Congress has the power to regulate "activities that
'substantially affect' interstate commerce." He stated that Congress has the
power to regulate activities that substantially affect interstate commerce under
the Necessary and Proper Clause of the Constitution. Scalia
wrote:
[A]s
this Court has acknowledged since at least
United
States v. Coombs, 12 Pet. 72 (1838),
Congress's regulatory authority over intrastate activities that are not
themselves part of interstate commerce (including activities that have a
substantial effect on interstate commerce) derives from the Necessary and Proper
Clause. Id., at
78; Katzenbach
v. McClung, 379 U.S. 294, 301--302
(1964); United
States v. Wrightwood
Dairy Co., 315 U.S. 110, 119
(1942);
Shreveport
Rate Cases, 234 U.S. 342, 353
(1914); United
States v. E.
C. Knight Co., 156 U.S. 1,
39-40 (1895) (Harlan, J.,
dissenting). And the category of
"activities that substantially affect interstate commerce," Lopez, supra, at 559,
is incomplete because 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.
Sen. Lisa Murkowski (R-Alaska): Last month, she led an unsuccessful attempt to stop the EPA from controlling carbon emissions. But just two years ago, she cosponsored a cap-and-trade bill. Here's what she was saying then:
Sen. Richard Lugar (R-Ind.): He has proposed climate legislation that completely avoids any mention of carbon caps or pricing. Two years ago, he felt a little differently:
Sen. Lindsey Graham (R-S.C.): He's become the poster boy of GOP flip-floppers, bailing out on the comprehensive climate and energy legislation he created with Sens. John Kerry (D-Mass.) and Joe Lieberman (I-Conn.) and now lining up behind Lugar's toothless bill. Three months ago, he said this:
Sen. Scott Brown (R-Mass.): Once he started running for the U.S. Senate, Brown picked up his party's "cap-and-tax" mantra with gusto. But only two years ago, while supporting a version of a cap-and-trade bill in the Massachusetts legislature, he was of a different mind:
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