Editorial: The Republicans and the Constitution

Editorial: The Republicans and the Constitution
Copyright by The New York Times
Published: July 19, 2010
http://www.nytimes.com/2010/07/20/opinion/20tue1.html?th&emc=th


Listen carefully as the votes on Elena Kagan’s nomination to the Supreme Court are taken beginning this week. Most court nominations are about judicial philosophy or social issues, but Ms. Kagan’s has become a flashpoint for a much larger debate about the fundamental role of American government.

Ms. Kagan has demonstrated an impressive legal mind and was both calm and firm under attack from Republicans during her hearings. Voting for her to take her place on the court should be an easy call.

Yet dozens of Senate Republicans are ready to vote against her, and many are citing her interpretation of the commerce clause of the Constitution, the one that says Congress has the power to regulate commerce among the states. At her confirmation hearings, Ms. Kagan refused to take the Republican bait and agree to suggest limits on that clause’s meaning. This infuriated the conservatives on the Senate Judiciary Committee because it has been that clause, more than any other, that has been at the heart of the expansion of government power since the New Deal.

The clause was the legal basis for any number of statutes of enormous benefit to society. It is why we have the Clean Air Act. The Clean Water Act. The Endangered Species Act. The Fair Labor Standards Act, setting a minimum wage and limiting child labor. The Civil Rights Act of 1964, outlawing segregation in the workplace and in public accommodations. In cases like these, the Supreme Court has said Congress can regulate activities that have a “substantial effect” on interstate commerce, even if they are not directly business-related.

Because it can be so broadly interpreted, the clause has been a target for legal conservatives for decades, all the way up to the current Tea Party diatribes against it. Some conservatives have even proposed that the Tea Party push a constitutional amendment to limit its interpretation. The Rehnquist court made several attempts to rein it in, most notably a 1995 ruling that the clause could not be the basis for the Gun Free School Zones Act, prohibiting the carrying of firearms near schools.

But the Roberts court has been far more friendly to federal power. Just this year, it upheld Congress’s ability to confine sex offenders after their prison sentences were over. Ms. Kagan, in her role as solicitor general, explicitly told the court that power could be based in part on the commerce clause.

And that is what really worries the right, because the most urgent current test of government power is now slowly making its way through the legal system to the Supreme Court. Twenty states have joined lawsuits saying the national health care law is unconstitutional, particularly the provision requiring health insurance. Lawmakers, anticipating the challenge, explicitly inserted a line in the law that the insurance mandate “substantially affects interstate commerce.” They also say it is based on the government’s fundamental power to tax. It is hard to see how the current court will disagree.

That is not stopping Senate Republicans from raising a huge ideological fuss, sending a message not only to Ms. Kagan but to the court as a whole. It is why Senator Tom Coburn of Oklahoma asked Ms. Kagan a seemingly silly hypothetical about the constitutionality of a law requiring Americans to eat three vegetables and fruits a day. Would that violate the commerce clause, he asked? (She didn’t give him the answer he wanted.)

It is also why all seven Republicans on the Judiciary Committee sent Ms. Kagan a letter last week demanding to know what she knew about the construction of the health care law as solicitor general and when she knew it. They are hoping to find any excuse to get her to recuse herself from ruling on the law, possibly reducing the margin if there is a close vote on the court, but more importantly, coming up with an excuse to vote against her.

Make no mistake that such a vote is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead.