From Michael Tanner at:
Suppose that the federal government, in its infinite wisdom, decided that it would deal with the obesity crisis and improve the health and welfare of the American people — by mandating that every American eat three helpings of vegetables and three helpings of fruit every day. Anyone caught failing to eat the required food would be subject to a fine or tax. Would such a law be constitutional?
Sen. Tom Coburn (R-Okla.) put that question to Supreme Court nominee Elena Kagan this week. Kagan, the US solicitor general, couldn’t answer. In fact, she implied that under the court’s “expansive” view of the Constitution’s Commerce Clause, a fruit and vegetable mandate might be just fine.
Now, some may think that such a hypothetical question is silly, other than giving us a glimpse of Kagan’s virtually unlimited view of government power. Congress would never pass such a “dumb” law, to use Kagan’s term — would it?
But Congress has just taken a very similar step, mandating that every American purchase a government-designed package of health-insurance benefits. The issue is now before the courts — there’s a hearing today.