By George F. Will, Investors Business Daily
June 25, 2010
Given Elena Kagan's aversion to "vapid and hollow" confirmation hearings devoid of "legal analysis," beginning Monday she might relish answering these questions:
• It would be naughty to ask you about litigation heading for the Supreme Court concerning this: Does Congress have the right, under its enumerated power to regulate interstate commerce, to punish inactivity of not purchasing health insurance?
So, instead answer this harmless hypothetical: If Congress decides interstate commerce is substantially affected by the costs of obesity, may Congress require obese people to purchase participation in programs such as Weight Watchers? If not, why not?
• The government having decided that Chrysler's survival is an urgent national necessity, could it decide Cash for Clunkers is too indirect a subsidy and instead mandate that people buy Chrysler products?
• If Congress concludes that ignorance has a substantial impact on interstate commerce, can it constitutionally require students to do three hours of homework nightly? If not, why not?
• Can you name a human endeavor that Congress cannot regulate on the pretense that the endeavor affects interstate commerce? If courts reflexively defer to that congressional pretense, in what sense do we have limited government?
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