Andy Pincus wrote an interesting piece on TPM today regarding Senators asking pointed questions to Supreme Court Nominee Elena Kagan regarding – of all things – the Commerce Clause in the Constitution.
And to my mind, this is the most important discussion that is happening there. It may seem a bit wonky and it's certain not as sexy or will sell as much ad time or ad space, as the Kabuki theater about military recruiters on campus, why does she hate the troops, why isn't she a judge or trial lawyer, pro- or anti-choice, Thurgood Marshall's legacy (and the idiocy from the GOP committee members on that score is a whole other post).
But trust me, none of it even comes close to the importance of her answers on this issue. Essentially they are asking her she believes Congress has the ability to enact a progressive legislative agenda.
For those who haven't had ConLaw I, this is the Commerce Clause, a.k.a. U.S. Constitution, Article I, Section 8, Clause 3, to wit:
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes
Here's why this is important. Republicans seeking a foothold against FDR's New Deal programs took the Roosevelt Administration to court, claiming that they and Congress exceeded their authority under the Commerce Clause to make the changes they did.
At that time, the Supreme Court agreed in a case called Carter v. Carter Coal Co. and struck down a key provision of the New Deal regarding regulation of industries like mining because they were not "commerce." This followed from the courts striking down many other provisions, such as minimum wage and child labor rules.
However, the so-called "switch in time that saved nine," when two justices essentially switched sides, resulted in the Court upholding the National Labor Relations Board's legal standing to regulate industry, and much of the rest of the New Deal followed.
This thumbnail sketch of legal history (which, admittedly leaves much out) is instructive; without those two justices changing their minds, there is effectively no New Deal.
Republicans on the Judiciary spent a lot of time today asking Kagan's views on the Commerce Clause. Here's an exchange Pincus picked up:
Senator Coburn asks "could Congress pass a law requiring Americans to eat vegetables and fruits three times a day"? Kagan says, the fact that a law is dumb does not make it unconstitutional.
But she points out that the Court has said that the Commerce Power extends broadly in the commercial context, and the cases invalidating federal statutes have involved statutes not tied to economic activity. Coburn's hypothetical might fail under that standard.
But Coburn says, what if the bill says "we've imposed this requirement to reduce health care costs." Kagan says, I've given you the principles I would apply and I don't feel I can go farther.
Coburn then says that the lack of limits on Congress's power--the refusal to enforce the Framers' original intent, in his view--has led to a federal government bigger than anything the Framers could have anticipated. And that has led to the budget deficit that burdens Americans today.
Kagan replies that one of the Court's earliest decisions adopted a broad view of the Commerce Clause.
The Republicans are looking to re-fight the whole New Deal legal battle with respect to the Commerce Clause, and to that end, Kagan will represent the swing vote.
Starting with the new health care plan, and on to financial reform, and just about anything else the Obama Administration wants to trot out is going to come under the gun of conservative legal thugs with access to nearly unlimited resources, ultra-deep pockets and a pathological hatred of the President.
Right now, the court would be split 4 to 4, with The Dread Justice Roberts, Sammy "The Gavel" Alito, "Fat Tony" Scalia, and "Long John" Thomas on the restrictive reading side and Sonia Sotomayor, Ruth Bader Ginsberg, David Souter and a reluctant Anthony Kennedy on the expansive reading side.
Although Anthony Kennedy is generally conservative, he has sided with the "liberals" on the court in many matters and has carved out a reputation for not being an ideologue like Scalia or Thomas. This has been especially true on social issues like gay rights, abortion, habeus corpus cases and notably joining the liberals on the court in the Kelo v. City of New London eminent domain decision.
According to reports in Roll Call, the President has not yet given up on two other major priorities that will almost certainly wind up on the business end of a Commerce Clause challenge: immigration and climate change legislation.
So if you wan to pay attention to something from these confirmation hearings that is not just more of the same absurd political circus, the pay heed to Kagan's answers on how she views the Commerce Clause – if she actually enunciates a view, that is.
The future of this administration could well rest on her answers, should she be confirmed.
mojo sends
