Will GOP Ask Kagan To Be A ‘Judicial Activist’ By Questioning Constitutionality Of Health Law?

Kagan 1 Ian Millhiser argues that during the first day of Elena Kagan’s Senate confirmation hearing, conservatives tried to paint her as a “judicial activist” and if they can convince her to overturn the health care law, then she will be. Republicans have made the nomination’s view of the individual health insurance mandate a litmus test and are expected to ask Kagan if she believes Congress has the authority to impose an individual mandate under its authority to regulate interstate commerce. As Sy Lazarus argues in today’s Politico, the GOP’s preferred answer would have the effect of reversing years of precedent and lead to some very far-ranging ramifications:

Technically, the cases challenge just the health reform law. But the radical legal theories they advance can extend much further. If accepted by the Supreme Court, these theories could shatter the constitutional foundations of landmark programs like Social Security, Medicare, civil rights and environmental protections. […]

Sessions and other Republican Senate leaders recently disavowed Rand Paul’s distaste for half-century-old Civil Rights Act protections. But the health reform lawsuits they support, in effect, comprise a second front in which Paul and his libertarian allies hope to bypass the political majorities that overwhelmingly oppose their rollback agenda.

Legal experts, including prominent conservatives, scoff at the merits of Cuccinelli’s case and of Florida Attorney General Bill McCollum’s similar challenge on behalf of 20 other Republican top state lawyers. Yet if the Supreme Court’s right-leaning majority grants the opponents’ claims, or any part of them, then challenges might be filed against other major statutes.

Logically, the next domino targeted could be the guarantees against private discrimination that Paul discussed. For the legal argument devised to strike down health reform could, if accepted, imperil those other laws..

In other words, redefining how the Supreme Court has interpreted Congress’ authority under the commerce clause would bring about the very kind of activism conservatives condemned during the first day of hearings.