High court nominee Kagan: Commerce Clause allows even dumb laws

We've addressed in this space before the sweeping usurpation of power the courts have allowed Congress under the Commerce Clause and its kindred spirit, the Necessary and Proper Clause.

Now the ridiculous lengths to which these can be abused are on display at the Senate Judiciary hearings for Supreme Court nominee Elena Kagan.

Oklahoma Sen. Tom Coburn asked her today: "If I wanted to sponsor a bill, and it said, 'Americans, you have to eat three vegetables and three fruits — every day.' And I got it through Congress and it’s now the law of the land. Gotta do it. Does that violate the commerce clause?"

After dancing around the question and calling such a law dumb, Kagan non-answered, "But I think that the question about whether it is a dumb law is different from the question of whether the question of it’s constitutional. And, I think the courts would be wrong to strike down laws that they think are senseless, just because they’re senseless."