During Elena Kagan’s nomination hearing, Senator Tom Coburn (R-OK) asked a simple question: “Do we have the power to tell people what to eat every day?” 

Coburn wasn’t really interested in some prospective “eat your fruits and veggies” law.  Rather, Coburn was addressing an issue many conservatives and libertarians have been concerned about for years–the often distorted interpretation given the commerce clause.  The Commerce clause is the basis for the majority of the federal government’s regulatory power in that it grants Congress the power “to regulate commerce with foreign nations, and among the several states, and with Indian Tribes.” 

Cato analysts Sallie James and Ilya Shapiro explain Coburn’s intent in an excellent oped in today’s Daily Caller where they suggest such laws might just be possible in the new Obamacare world.  These laws, they say, will be passed using the “it lowers healthcare costs” logic. 

It’s not any kind of logical leap to ask whether, in the name of combating our obesity epidemic and lowering national health care spending, the government can regulate gastronomic intake-or require people to join a gym (assuming the health club company has successfully lobbied for its franchises to be on the “approved” list). 

As is often the case when the government claims ever-increasing powers, the Commerce Clause is the culprit here.  This constitutional provisions grants Congress the power to “regulate Commerce . . . among the several States.”

…Indeed, Kagan was briefly pained to respond to Coburn’s question before reciting the holdings of Lopez and Morrison, that the federal government could not regulate non-economic activities or areas traditionally left to the states.  Coburn followed up by asking whether, if it were shown that eating more vegetables reduced health care costs, would it fit into the “settled law” of what Congress can regulate.  Kagan’s indirect answer-that nonsensical laws could still be constitutional-implied that it would. 

James and Shapiro also make the excellent point that there are a few other steps the government could take  to keep costs down…those, however, would hardly be approved of by the Left. 

Unfortunately, Kagan is tapping into a legitimate point: when you socialize health care costs, taxpayers have an interest in keeping those costs down, including by mandating behavior that should rightly be considered private. Some conservatives might like to require that all unwed mothers be injected with Depo-Provera or be put on other long-term birth control methods so taxpayers aren’t saddled with the cost of raising their children. Many on the left would not agree with that particular policy, but they rely on the same arguments about cost-control when they justify government mandates and subsidies like those proposed by Michelle Obama in her Let’s Move! campaign. 

Both sides seek to justify state interference with personal freedom by appealing to the “I’m paying for it” logic.  Neither side-nor unfortunately Elena Kagan-seems to understand that the key to a free society is to limit the extent to which one person’s choices mean a claim on another’s pocketbook.