Understanding the ACA Arguments

Lori A Ringhand ringhand at uga.edu
Fri Mar 30 05:17:28 PDT 2012

For what it is worth, here is the vegetable exchange from the Kagan hearing:

COBURN: Let me go to one other thing. Senator Cornyn attempted to ask this, and I think it’s a really important question. If I wanted to sponsor a bill and it said, Americans, you have to eat three vegetables and three fruits every day, and I got it through Congress and it’s now the law of the land, you’ve got to do it, does that violate the Commerce Clause?

Kagan: Sounds like a dumb law. [Laughter.]

COBURN:  Yes. I’ve got one that’s real similar to it I think it equally dumb. I’m not going to mention which it is.

Kagan: But I think the question of whether it’s a dumb law is different from whether the question of whether it’s constitutional,  and—and—and I think that courts would be wrong to strike down laws that they think are—are senseless just because they’re senseless.


[1] Kagan Transcript, questioning by Senator Coburn (R-OK) at 92.

Lori A. Ringhand
Professor of Law
University of Georgia College of Law
Athens, GA 30601

ringhand at uga.edu<mailto:ringhand at uga.edu>
706 542 3876
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Richard Dougherty [doughr at udallas.edu]
Sent: Thursday, March 29, 2012 10:41 PM
To: Mae Kuykendall
Cc: conlawprof at lists.ucla.edu
Subject: Re: Understanding the ACA Arguments

Actually,  I think that it worked the other way around; the Tea Party picked up the legal debate (or at least political debate) that had already focused on it.  Don't have time to look it up, though...  (So, I'm not off the hook, but I'll do it later).
Richard Dougherty

On Thu, Mar 29, 2012 at 9:01 PM, Mae Kuykendall <mae.kuykendall at law.msu.edu<mailto:mae.kuykendall at law.msu.edu>> wrote:
Quoting Charles Fried:  "I was appalled to see that at least a couple of them were repeating the most tendentious of the Tea Party type arguments,” Fried said. “I even heard about broccoli. The whole broccoli argument is beneath contempt. To hear it come from the bench was depressing.”

Apparently Scalia, a judge often admired for a sharp intellect, virtually quoted arguments concocted and purveyed by Rush Limbaugh.

I share a sense of depression with my former contracts professor.  mk

>>> Daniel Hoffman <guayiya at bellsouth.net<mailto:guayiya at bellsouth.net>> 3/29/2012 6:27 PM >>>
Some say it's revolutionary to let government order us to do something.
How about the "Reduce Speed" signs in the interstate?
Those don't even require a purchase, so how do they regulate commerce?
--- On Thu, 3/29/12, Robert Sheridan <rs at robertsheridan.com<mailto:rs at robertsheridan.com>> wrote:

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