- The Washington Times - Tuesday, July 13, 2010

Does Congress have the power to tell people what to eat? Maybe you think that’s a stupid question. Nonetheless, it was a question that Supreme Court nominee Elena Kagan was unwilling to answer. The question was posed to Ms. Kagan by Sen. Tom Coburn, Oklahoma Republican, during her Senate hearings. In trying to avoid answering the question, Ms. Kagan responded by saying, “Sounds like a dumb law,” but she did admit that just because a law might be dumb does not make it unconstitutional. And that was the extent of her answer.

So, can Congress tell us what we should eat? Well, back in 1942, the Supreme Court decided that, indeed, Congress basically can do just that. In the infamous case of Wickard v. Filburn, the U.S. government ordered the owner of a small farm in Ohio, Roscoe Filburn, to cease and desist growing wheat to feed his chickens. Filburn had no intention of selling the wheat, but, nonetheless, he was ordered to destroy it and pay a fine for having the temerity to think he could grow wheat for is own consumption without permission from the U.S. Congress.

The reason the full force of the U.S. government came down upon Filburn was because he was in violation of the Agricultural Adjustment Act of 1938. That act, part of Franklin D. Roosevelt’s New Deal, limited the area farmers could devote to wheat production. The purpose behind the act was Washington’s attempt to stabilize wheat prices by centralizing the planning of national wheat production. So, when Filburn asked the U.S. Supreme Court whether Congress had the authority to tell him how much wheat he could grow for his own consumption, the court surprisingly said, “Heck, yeah.”

The court found Congress’ authority to do so in the interstate commerce clause. For those not familiar with this clause, it is one of the enumerated powers granted to Congress in Article 1, Section 8 of the U.S. Constitution. Before 1942, the court had interpreted the interstate commerce clause to empower Congress in matters of interstate commerce. Thus, in order for Congress’ authority to be valid under the clause, it could only regulate activities that involved two or more states. That all changed when Filburn came with his hat in hand to Washington.

Never known before in the prior 150 years of constitutional jurisprudence, the Supreme Court told Filburn that even though growing wheat to feed his chickens did not involve interstate commerce, it did “affect” it. And because it affected interstate commerce, Congress could regulate it. How did it affect that commerce? Well, because Filburn selfishly was growing his own wheat to feed his chickens, he would purchase less wheat on the open market. Thus, Filburn’s self-sufficiency got in the way of the grand plans of his congressional overlords, and he needed to be stopped.

So, if, according to the Supreme Court, Congress can stop you from growing your own wheat on your own land to feed your own chickens, why can’t it tell you what to eat?

Accordingly, let’s view Mr. Coburn’s question to Ms. Kagan through the lens of the Supreme Court’s decision in Wickard v. Filburn. Not eating a proper diet can lead to all kinds of health problems. In fact, because of overeating, approximately 25 percent to 30 percent of Americans are obese. Obesity can lead to a host of morbidities, including cardiovascular disease, certain types of cancer and two types of diabetes. All of this leads to increased health care costs and spending. Any justice worth his or her Ivy League bona fides surely would conclude that such costs and spending certainly “affect” interstate commerce. And now that Congress has centralized its planning of health care by passing Obamacare, a potential legislative apparatus such as the one that ensnared Filburn for growing his own wheat is in place.

The Wickard v. Filburn case is not a constitutional aberration. It is part of the foundation upon which modern interstate-commerce-clause jurisprudence is based. It was at the beginning of the Supreme Court’s almost uninterrupted path toward increasing U.S. congressional power and reach far beyond what is granted in the text of the Constitution. It is part of the reason many of today’s members of Congress get that glazed look in their eyes when asked the inconvenient question, “Where in the Constitution does Congress have the authority to force people to buy health care insurance?”

Ms. Kagan is no dummy, and her failure to answer Sen. Coburn’s simple question was not because she did not know the answer or at least the answer her view of the Constitution would provide. She is a big-government liberal. Under her view of the Constitution, the answer to whether Congress can tell American citizens what to eat is “Heck, yeah.”

David P. McGinley, a lawyer from McLean, Va., is a visiting professor at Handong International Law School in South Korea.

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