Is there no limit to Congress’s power?

[Valin]

Washington Post:

George F. Will
11/18/11

Shortly before the Supreme Court agreed to rule on the constitutionality of Obamacare’s individual mandate, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit affirmed its constitutionality. Writing for the majority, Judge Laurence H. Silberman, a Reagan appointee, brusquely acknowledged that upholding the mandate means there is no limit to Congress’s powers under the Commerce Clause. Fortunately, Silberman’s stark assertion may strengthen the counterargument. Silberman forces the Supreme Court’s five conservatives to face the sobering implications of affirming the power asserted with the mandate.

Does Congress’s enumerated power to regulate interstate commerce empower it to compel individuals, as a condition of living in the United States, to engage in a commercial activity? If any activity, or inactivity, can be said to have economic consequences, can it be regulated — or required — by Congress? Can Congress forbid the inactivity of not purchasing a product (health insurance) from a private provider? Silberman says yes:

“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.”

(Snip)

There is an abdication of judicial duty in Silberman’s complacent conclusion, which is: We can articulate no limit on Congress’s power flowing from the Commerce Clause; get over it. This might galvanize a Supreme Court majority to say “Enough!” and begin protecting individual liberty from a Commerce Clause that the court itself has transmogrified into an anti-constitutional gift to Congress of a virtually unlimited police power. This case can begin restoring Madison’s constitutional architecture for a government limited by the enumeration of its powers.

[Saltbag]

This vote pretty much determines whether we still have a legitimate Supreme Court.

 

We'll see who recuses. We'll see who votes down party lines, Constitution be damned.

 

Sadly, this is no Scooby-Doo mystery to predict how things will happen.

[Valin]

This vote pretty much determines whether we still have a legitimate Supreme Court.

 

We'll see who recuses. We'll see who votes down party lines, Constitution be damned.

 

Sadly, this is no Scooby-Doo mystery to predict how things will happen.

 

It all will come down to Anthony Kennedy.

[Valin]

This vote pretty much determines whether we still have a legitimate Supreme Court.

 

We'll see who recuses. We'll see who votes down party lines, Constitution be damned.

 

Sadly, this is no Scooby-Doo mystery to predict how things will happen.

 

FYI

 

PJ Tattler: Doug Ross: Newly Released Emails Shed Light on Kagan’s ObamaCare Role

 

An October 13, 2009, exchange between Kagan and former Deputy Solicitor General Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). (The bulk of the email exchange reflects a discussion about Kagan, and also provides instructions regarding a hiring decision within the agency, although the nature of the position is unclear. When Katyal asks if Kagan wants to handle the hire via email or in person meeting, Kagan responds, “In person. I’ll call a meeting when I return.”)

 

Snip)