Elena Kagan in Speech at 2011 CPAC conference

On Government Reform: Commerce clause does not apply to non-economic activities

Kagan, June 29, 2010: "The commerce clause has been interpreted broadly. It's been interpreted to apply to regulatio of any instruments or channels of commerce, but it's also been applied to anything that would substantially affect interstate commerce. It has not been applied to non-economic activities, and that's the teaching of Lopez and Morrison, that the Congress can't regulate non-economic activities, especially to the extent that those activities have traditionally been regulated by the states. And I think that that would be the question that the court would ask with respect to any case of this kind."