In a ruling released yesterday, a 3-judge panel of the D.C. Circuit Court of Appeals didn’t void any part of Obamacare, instead ruling that the health care overhaul doesn’t clearly exceed Congress’s authority under the Commerce Clause. While concluding that Obamacare “seems an intrusive exercise of legislative power” and is “certainly is an encroachment on individual liberty,” Judge Laurence Silberman wrote, “We are obliged — and this might well be our most important consideration — to presume that acts of Congress are constitutional.” (Another judge concurred with Silberman, while a third ruled that the court did not have jurisdiction to hear the case.)

Acts of Congress should indeed be struck down only if they violate the “manifest tenor” (obvious meaning) of the Constitution — that is, if they clearly violate the Constitution, or violate it beyond a reasonable doubt. (We should be so fortunately as to have judges adhere to this standard across the board.) At the same time, however, there are two ways in which judges can be activist (or at least fail to do their duty): The first is by striking down acts that don’t plainly violate the Constitution; the second is by failing to strike down acts that do. This ruling falls into the latter category.

Moreover, the ruling highlights how difficult it is to avoid the conclusion that Obamacare clearly violates the Constitution’s plain language. It showcases that the only way that such a determination can be reached is by subscribing to an expansive, Progressive reading of the Constitution that effectively transforms the document’s limited and circumscribed grants of power into an overarching power to do essentially anything that those in office think should be done. This conclusion is best summed up in the following, somewhat chilling, passage from the opinion: “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems.”
Almost needless to say, the Founders didn’t list this overarching power in the Constitution. To the contrary, they made it clear that Congress’s attempts to forge national solutions must yield to the constitutional limits on federal power — limits that James Madison described as one half of the “double security” to “the rights of the people.”

As the following excerpts convey, Judge Silberman’s opinion doesn’t do much to protect those rights, apply the Constitution’s plain meaning, or avoid — in Chief Justice John Marshall’s words — “that enlarged construction which would extend words beyond their natural and obvious import.” It’s difficult to tell whether Silberman agrees with the Supreme Court precedents he’s citing or not, but the key aspect of his opinion is his willingness to further expand — without seemingly recognizing that he’s expanding — the Court’s already untenably expansive reading of the Commerce Clause, to the point of claiming that Congress has the power to directly compel commerce under the guise of regulating it, and can thereby require Americans to purchase a good against their will. Here are some key excerpts:

“The mandate [Obamacare’s individual mandate], it should be recognized, is indeed somewhat novel….

“The Framers, in using the term ‘commerce among the states,’ obviously intended to make a distinction between interstate and local commerce, but Supreme Court jurisprudence over the last century has largely eroded that distinction….

“We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right. It suffices for this case to recognize, as noted earlier, that the health insurance market is a rather unique one, both because virtually everyone will enter or affect it, and because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services….

“Moreover, if Congress can regulate even instances of purely local conduct that were never intended for, or entered, an interstate market, [as, under Supreme Court precedent, it can,] we think Congress can also regulate instances of ostensible inactivity inside a state.

“That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before — but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family. The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems.”

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