On many occasions over the past year and a half, I have addressed groups about the Patient Protection and Affordable Health Care Act of 2009 — more commonly known as “Obamacare.” Invariably, someone asks me whether I think the U.S. Supreme Court will declare this massive re-engineering of America’s health care system — this law that presses the envelope of government power under the so-called “Commerce Clause” to an extent never before attempted — unconstitutional. My answer has not always pleased conservatives, in that I caution Obamacare opponents not to be overly optimistic simply because there appears to be a conservative majority on the high court.
A decision last week by the federal Court of Appeals for the District of Columbia bears out my cautionary approach. That decision, written by Judge Laurence Silberman — an appointee of President Ronald Reagan and the author of the landmark Second Amendment decision that in 2008 became the vehicle for the Supreme Court to throw out the District of Columbia’s gun ban — found the “individual mandate” provision in Obamacare to pass constitutional muster. Importantly, Silberman’s decision, which The Wall Street Journal described as “strange,” provides an easy path for a majority of the nine justices who serve as the nation’s court of last resort to uphold the insurance law.
Silberman, who was joined in his majority opinion by a fellow jurist appointed by former President Jimmy Carter, concluded that federal courts should continue to grant great deference to legislation passed by the Congress, so long as such laws are designed to address “national problems.” In other words, the courts should “presume” that when Congress acts, it does so constitutionally — placing a nearly insurmountable burden on those who might challenge such actions. The Supreme Court could also draw on a long line of cases — often joined in by so-called “conservative” judges including Justice Antonin Scalia — in which intrusive actions by the Congress to control actions by individuals or state governments receive a deferential seal of approval from the courts, based simply on precedent.
Even more discouraging, however, is the cavalier manner in which Silberman dismisses claims that the individual mandate — whereby individuals are required to purchase government-defined health care insurance or face a penalty — extends the congressional power to “regulate” commerce far beyond earlier precedents. This is because Obamacare forces individuals into the commercial arena.
Silberman correctly cites earlier case law for the proposition that federal courts have indeed found a wide range of economic activities to be “commerce” and therefore subject to federal regulation, even though common sense dictates otherwise. But he misses the boat entirely in concluding that those expansions of what constitutes “commerce” provide a proper basis from which to conclude that a person’s decision not to engage in commerce constitutes engaging in commerce.
Tragically, this faulty analysis appears to have led Silberman to conclude that these judicial precedents have turned the Commerce Clause into a vast and essentially limitless “federal police power,” under which this latest foray is but another brick in the wall of federal control over virtually every aspect of our lives.
There is also language in Silberman’s decision that could provide a basis on which the Supreme Court could defer a decision until the individual mandate goes into full effect in 2014. It is axiomatic that many appellate judges favor not making decisions if there is an easy way to avoid doing so, and this path may very well appeal to one or more of the Supreme reviewing Obamacare.
The irony of all this is that so-called “conservative” judges like Silberman and Scalia may very well provide the rationale and even the votes that will eventually validate the most far-reaching and freedom-limiting piece of federal legislation in our nation’s history. If so, then we truly will have reached the point from which virtually no future federal encroachments into individual behavior would be deemed unconstitutional so long as they do lip-service to the Commerce Clause.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He provides regular commentary to Daily Caller readers.