Varney advances baseless attack that Kagan's Commerce Clause comments are extreme

››› ››› MATT GERTZ & ADAM SHAH

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 constitutional. 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.

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Government, Nominations & Appointments, The Judiciary
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Fox News Channel
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Stuart Varney
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Your World w/ Neil Cavuto
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Supreme Court Nominations, Elena Kagan
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