A July 1 Wall Street Journal editorial and a July 1 New York Post op-ed by Cato's Michael Tanner both advanced the baseless claim that Elena Kagan's comments that courts have broadly interpreted Congress' power to write laws regulating interstate commerce is somehow extreme. In fact, as Media Matters has noted, Kagan's comments are in accord with an opinion by conservative Justice Antonin Scalia and a 2005 ruling by a majority of the Supreme Court.

From The Wall Street Journal editorial:

If Congress passed a law saying Americans were required to eat three fruits and three vegetables a day, Mr. Coburn asked, would that be legitimate under the Commerce Clause? It sounds like a “dumb law,” Ms. Kagan wisecracked, which is true enough, but then she added that “courts would be wrong to strike down laws that they think are senseless just because they're senseless.” In other words: Congress could do it. The real question here is whether Ms. Kagan recognizes any limits on the Commerce Clause, which legislators have used as justification to regulate or mandate just about anything, and which the Obama Administration is eyeing as its golden ticket to defend ObamaCare. Some 20 states are challenging the law on the grounds that forcing people to buy health insurance shreds the Constitution.

[...]

In that spirit, Ms. Kagan maintained that in recent years the Commerce Clause has been read broadly, to suggest “that deference should be provided to Congress with respect to matters that affect interstate commerce” and that “the principal protector against bad laws is the political branches themselves.”

That one would have made James Madison howl. When it was written, the Commerce Clause was intended as part of the Constitution's enumerated powers to limit government that could be abused by factions and willful men -- that is, by politicians who write “dumb laws.”

From Tanner's Post op-ed:

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.

Previously:

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