National Review Institute | Media Malpractice National Review Institute | Media Malpractice About NRI

How Does Politico Get Its Food?

Covering the June 29th Elena Kagan confirmation hearing, Politico’s Josh Gerstein reports:

Republicans are pouncing on the less-than-crystal-clear answer Supreme Court nominee Elena Kagan gave late in Tuesday’s confirmation hearing to a question from Sen. Tom Coburn (R-Okla.) about whether the government has the right to micromanage Americans’ diets.

While it’s true that Kagan never definitively answered Coburn’s question, the pair spent nearly 10 minutes discussing the issue. In comments she made after the brief [video] clip the GOP posted, Kagan indicated that laws that regulated noneconomic activity, which presumably would include eating, were beyond Congress’s commerce clause power.

How exactly is eating a “noneconomic” activity? Unless Gerstein is eating himself, surely he knows that the food he eats must firstĀ  be bought (at a grocery store, restaurant, etc.) before he consumes it. Buying anything, including food, is obviously economic activity.

And even assuming Gerstein grows his own food, every law student that passed Con Law 101 knows that the seminal Supreme Court commerce clause case, Wickard vs. Filburn, held that even a farmer who grew wheat on his own farm for his own personal consumption was still subject to the same wasteful and completely ineffective federal government farm subsidy regime that is still considered constitutional today.

Politico needs to send Gerstein back to undergrad Logic 101 and law school before they let him report on legal matters again.