SCOTUS Nominee: Food Fascism Is “Dumb”

With the retirement of Justice John Paul Stevens from the Supreme Court, President Obama’s nominee Elena Kagan is now testifying before the Senate during her confirmation hearings. While such Q&A sessions are generally boring and typically see nominees offering vague and non-committal answers, Kagan served up some fresh bluntness yesterday. When Senator Tom Coburn (R-OK) asked her about whether the federal government could force people to eat a certain way (akin to making the USDA’s Dietary Guidelines for Americans mandatory), Kagan was skeptical:

Coburn: If I wanted to sponsor a bill and it said Americans you have to eat three vegetables and three fruits every day […] does that violate the Commerce Clause?

Kagan: Sounds like a dumb law…But I think the question of whether it’s a dumb law is different from the question of whether it’s constitutional. And I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless.

We’re glad to hear Elena Kagan thinks forcing Americans to follow a government-prescribed diet sounds stupid, because it is. (Sorry, Michael Jacobson.) But that’s the exact philosophy of command-and-control espoused by “food police” activists like Kelly Brownell: They want to create new laws and abuse the tax code to mold our meals for us.

That said, the second part of Kagan’s response leaves us hanging. Might a law telling us what to eat and drink—despite being a dumb law—pass constitutional muster? Hopefully she will clarify her remarks before the hearings are over. You never know if Brownell and his likeminded comrades will get a group of policymakers to buy into his Big Government ploy. Since an appointment to America’s highest court is for life, Kagan and her soon-to-be fellow Justices may eventually be asked to make such a decision—whether we like it or not.

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