Fair-weather federalists: why conservatives and progressives should unite against an overweening national government.

• Author: Sullum, Jacob

WOULD A LAW requiring Americans to eat their fruits and vegetables be constitutional? During Elena Kagan's Supreme Court confirmation hearings in June 2010 sen. Tom Coburn asked her whether such a law could be justified as an exercise of the federal government's authority to "regulate commerce ... among the several states." When Kagan dodged the question, the Oklahoma Republican pressed her: "What if I said that eating three fruits and three vegetables [a day] would cut health care costs 20 percent? Now we're into commerce. And since the government pays 65 percent of all the health care costs, why isn't that constitutional?"

Kagan never did answer the question, except to say that a "dumb law" is not necessarily unconstitutional, which was hardly reassuring to those who suspected that her reading of the Commerce Clause was broad enough to accommodate the Patient Protection and Affordable Care Act's requirement that Americans buy government-approved health insurance. But Coburn, despite his professed concern about Kagan's "expansive view of the Commerce Clause" has been known to read that authority rather broadly himself. The senator brags about writing the Partial-Birth Abortion Ban Act, a 2003 law that makes it a federal crime to use a specified abortion technique "in or affecting interstate or foreign commerce."

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As Independence Institute Research Director David Kopel and University of Tennessee law professor Glenn Reynolds noted in a I997 Connecticut Law Review article, "it is not really possible to perform an abortion 'in or affecting interstate or foreign commerce' ... unless a physician is operating a mobile abortion clinic on the Metroliner" Such language, they argued, can only baffle "any person not familiar with the Commerce Clause sophistries of twentieth century jurisprudence." Those are precisely the sophistries that Coburn claims to resist but is happy to deploy when they advance his purposes.

It has always been thus, University of Oregon law professor Garrett Epps argued in a 2ooi New York Times op-ed piece. "When it comes to states' rights;' Epps wrote, "we are all hypocrites." His immediate example was John Ashcroft, who as governor of Missouri had decried congressional dreams of "an all-powerful centralized bureaucracy" but as George W. Bush's attorney general tried to stop Oregon from implementing its Death With Dignity Act. Epps added that Thomas Jefferson, James Madison, Stephen A. Douglas, and Abraham Lincoln all displayed similar inconsistencies. "One scans American history in vain to find a major figure whose position on states' rights was not directly connected to his or her position on the underlying political question" Epps wrote. "When it suits our leaders, they are in favor of broad federal power; when it does not, they claim 'states' rights.'"

A Grand Bargain

In principle, at least, it does not have to be this way. Precisely because federalism is useful to people with different political agendas, it should be possible to strike a deal: I will not use the federal government to interfere with your local policy choices if you grant me the same leeway. That's assuming states do not try to exercise powers prohibited by the Constitution (and there is room for disagreement about precisely what those are). But broadly...