08.11.2010 0

Kagan: A lost opportunity to debate federal government powers

Congressman Pete Stark went from obscure, cranky socialist who even the Democrats thought was too nuts to entrust to the Ways and Means Committee Chairmanship to Internet sensation over the past couple of weeks.

Did he do a funny dance at a wedding?

Maybe he led Congress in one of those frozen mob scenes that get hundreds of thousands of YouTube views?

Was he guilty of “Rick Rolling” Al Franken?

No, Pete Stark told the truth to a town hall audience about how he and his Democratic colleagues view federal government power when he said that the “federal government can do almost anything.”

The battle for the heart and soul of America is being played out in debates at tea party rallies and Congressional town hall meetings about the extent of federal authority all across the nation.

The question of federal power is at the core of virtually every major piece of legislation that is considered by the Reid-Pelosi Congress, as those who believe in individual rights and a constitutionally limited government seek to stop the steamroller that has led to a virtual takeover of both the health care and financial sectors of our economy.

The nomination of Elena Kagan teed the issue up for the U.S. Senate. The confirmation of Kagan, a political appointee with virtually zero legal experience, was the ideal chance for the Senate to have the debate that is roiling the rest of America. Given her background, all Elena Kagan had to laud her nomination was her views on the Constitution.

Unfortunately, this unique opportunity to bring the nomination debate to the highest level was lost.

The door to have the debate was opened in the Senate Judiciary Committee when Kagan failed to directly respond to questioning by Senator Tom Coburn (R-OK) on whether the federal government has the power to tell individual Americans what they should eat.

While it seems almost silly to fathom, with taxpayers increasingly footing the bill for other people’s health care, it is reasonable to assume that someone in Congress is going to say, “those people need to eat better, and I’m passing a law to see that they do.” When coupled with the First Lady’s anti-obesity campaign that revolves around diet and exercise, it would be surprising if regulators aren’t already busily concocting healthy eating regulations. So, don’t be surprised if the Supreme Court is deciding this issue sometime within now-Associate Justice Kagan’s lifetime tenure.

The Senate missed the opportunity even though Kagan’s refusal to answer the basic question of whether the federal government can throw you in jail for failing to eat your brussel sprouts, goes to the heart of the debate about the legitimate constitutional role of our federal government.

Kagan’s view on whether the Constitution limits federal government power will become readily apparent in the very near future as she has decided not to recuse herself from voting on cases brought against the new health care law, which she played a role in passing.

Because the legal issues surrounding the health care law revolve around basic questions of the proper role of the federal government, and whether the Commerce Clause in the U.S. Constitution gives Congress and the executive branch carte blanche to compel states and individual citizens to take actions such as purchasing health insurance, it promises to be the modern day constitutional precedent on the limitation of federal powers.

Too bad the U.S. Senate did not take the time to have this fundamental discussion on the proper role of government before Kagan was confirmed. You never know, it might have even made YouTube.

Rick Manning is the Communications Director of Americans for Limited Government

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