Elena Kagan nomination

Only one Republican member of the Senate Judiciary Committee, Sen. Lindsey Graham, joined the Democratic members in voting to send the nomination of Solicitor General Elena Kagan to the full Senate. But as an editorial in The New York Times notes, the vote was more than just action in favor of or against Kagan and the president.

A growing number of Republicans and especially leaders of the Tea Party, as noted in a new Issue Brief from the Constitutional Accountability Center (CAC), are openly begging the Supreme Court to limit congressional authority to enforce constitutional rights. More specifically these Republicans are looking for the Supreme Court to substantially limit the sweep of the Constitution's commerce clause, which over the decades has allowed Congress to better the lives of Americans, the editorial notes.

The Times' editorial states:

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.

But the editorial notes, Republicans are hoping for a Supreme Court that will start to radically weaken the commerce clause, especially since lawsuits aimed at bringing down the health care reform law are beginning to wend their way through the courts and could land before the high court.

As the editorial states, "Twenty states have joined lawsuits saying the national health care law is unconstitutional, particularly the provision requiring health insurance." And the opponents of the health care reform law are largely targeting the commerce clause, asserting that it is too expansive and must be reined in. Tea Partiers go even farther arguing that the Constitution as they see it was never intended to give the federal government much power.

A number of Senate Judiciary Republicans also suggested that Kagan, if confirmed, recuse herself if the health care law issue were to reach Court. In written answers to the senators, Kagan said she was not involved in administration discussion about the state attorneys general lawsuits, indicating "there's litttle chance she would recuse," the Blog of the Legal Times reported. 

But as noted time and again on this blog, constitutional law experts, such as law professors Jack Balkin, Erwin Chemerinsky and Robert A. Schapiro have all argued that the health care reform law is on solid constitutional ground because of the commerce clause and Congress's power to tax and spend.

In addition, in an ACS Issue Brief, Simon Lazarus, public policy counsel of the National Senior Citizens Law Center (NSCLC) provides a cogent case for individual mandates that are central to the health care reform law. Recently Lazarus talked with ACSblog about the state challenges to the health care reform law, blasting them as wobbly and politically motivated. Video of his interview is available here.