"Many Americans are concerned that Congress has imposed an individual mandate on health coverage and imposed a penalty, a financial penalty if you don't purchase government-approved health insurance," said Sen. John Cornyn, who added the mandate would be an "unprecedented reach of Congress's authority."
Kagan responded in broad terms: "Well, I think the current state of the law is to grant broad deference to Congress in this area, to assume that Congress knows what's necessary in terms of the regulation of the country's economy, but to have some limits."
She said the Constitution limits Congress from regulating noneconomic activities. " I think that that's the limit that the court has set," she said.
Kagan was not asked directly whether she would have to recuse herself from litigation arising from the recent health care legislation. But in an exchange with Sen. Patrick Leahy of Vermont, she suggested that as the Obama administration solicitor general, she had not played a role in any deliberations surrounding domestic policy.
"The solicitor general does not typically take part in policy issues" she said, "the only policy issues I think that I might have taken part in ... are some national security issues. "
Sen. Lindsey Graham praised a recent case Kagan's office won in federal court, denying detainees at Bagram Air Force Base the chance to challenge their detention in federal court.
"I want every conservative legal school and commentator to know that you did an excellent job," he said.
Graham also asked Kagan whether she agreed with the Obama administration's proposition that in the current war on terror the definition of a battlefield is the "entire world" -- a stance that has infuriated some liberals. Kagan replied that as a legal policy matter as solicitor general she agreed.
Kagan also indicated what she thought about reading Miranda rights to a terrorism suspect.
"Do you think it would be in the United States' best interest to have clear guidance to our intelligence community, give them the tools and the flexibility when they capture one of these guys, whether it be in Times Square or in Detroit, to find out, without having to do anything else at the moment, what's the next attack?" he asked.
"I suppose on this one, Sen. Graham, that I'm reluctant to say how I would think about the question as an average, everyday citizen, because I might have to think about the question as a judge," Kagan replied.
She reiterated that she is comfortable with trying suspected terrorists in military commissions.
"Do you personally feel comfortable with that?" Graham asked. "I do. I wouldn't be in this administration if I didn't," she replied.
In a heated exchange with Republican Sen. Jeff Sessions Kagan openly reiterated her disdain for the Department of Defense's policy forbidding gays and lesbians from openly serving in the military.
"I have repeatedly said I believe "Don't ask Don't tell" is unwise and unjust," she said.