If the interstate commerce clause somehow permits the federal government to compel involuntary commercial activity in the form of a forcible purchase, what possible power remains beyond its reach?

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“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…” 

Somehow, that absurdity masquerading as legal reasoning actually survived the editing process, and maintained its prominence within the written opinion of Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit in his decision this week upholding ObamaCare. 

Judge Silberman’s opinion truly is preposterous and bizarre.  It does, however, at least provide a beneficial cautionary reminder to Americans who might assume that we can rely upon the judicial branch to quash the ObamaCare monstrosity. 

Contrary to Judge Silberman’s statement, nobody challenging ObamaCare and its unconstitutional mandates claims some sort of “absolute” right to be free from federal regulation.  Such an “absolute” freedom from federal regulation would mean domestic anarchy, a dysfunctional and inefficient cauldron of interstate rivalry.  The Constitution itself was drafted to prevent that state of affairs, while at the same time preserving individual human freedom to the greatest degree possible.  That is how America became the most prosperous and most powerful society in human history. 

Judge Silberman, on the other hand, effectively declares the right of federal regulation to be free from commerce-clause limitation absolute.  He also renders that critical clause of the Constitution absolutely free of meaning. 

Obviously, our Founding Fathers didn’t incorporate the interstate commerce clause into the Constitution’s text for no reason whatsoever.  Quite the contrary, they intentionally sought to limit federal commercial authority to commerce actually traversing state lines.  Prior to the Constitution’s ratification, one may recall, the weak Articles of Confederation resulted in commercial warfare between the individual states.  That proved an unworkable societal model, so the Founders granted federal power over the actual goods and services crossing state lines. 

That power was not without limit, however.  The Founders did not grant wholesale authority to simply regulate “commerce.”  Rather, they specifically drafted Article I, Section 8 using the limiting language, ”To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” 

Judge Silberman’s defective decision ignores that limitation. 

Specifically, his opinion affirms ObamaCare’s individual mandate, which forces every single citizen to purchase a health insurance plan approved by the federal leviathan, or else pay a penalty.  A penalty, by the way, that Obama himself refused to call a “tax” during a televised interview, only to have his Justice Department subsequently label a tax so that it could pass Constitutional muster under federal taxation powers. 

At any rate, if the interstate commerce clause somehow permits the federal government to compel involuntary commercial activity in the form of a forcible purchase, what possible power remains beyond its reach?  Would the next auto bailout come in the form of an individual mandate that every American purchase a new car?  Would Obama’s next housing initiative come in the form of an individual mandate that every American buy a new home?  Hire an employee to reduce unemployment?  What limitation would possibly remain? 

Obviously, none.  The illogic employed by ObamaCare proponents would render the commerce clause nothing more than a useless appendage. 

Making his opinion even more bizarre, Judge Silberman acknowledges that the federal power he affirms is unprecedented, and that government lawyers could offer no “doctrinal limiting principles” upon it.  But never mind that, apparently.  Judge Silberman also pointlessly observes that, “We are obliged – and this might well be our most important consideration – to presume that acts of Congress are constitutional.”  To presume something is very different than simply accepting it as fact, but Judge Silberman apparently didn’t take a moment to ponder the distinction.  It makes for a shameful and unjustifiable abdication of judicial responsibility. 

Because the U.S. Supreme Court appears poised to announce that it will decide this matter, Judge Silberman’s ruling received less media attention this week than it otherwise might have.  We can hope that at least five Justices will demonstrate the wisdom to hear the case and reject this unconstitutional expansion of federal power. 

The Supreme Court has proven unreliable even in recent years, however.  Just recall the Kelo v. City of New London decision, as just one example. 

ObamaCare remains deeply unpopular, and popular action will likely prove the only reliable means to end this tawdry spectacle once and for all.