George Will: Is there no limit to Congress’s power?

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.”(continued)

Consider where we conservatives are desperately trying to draw the line here.

Because the commerce clause of the Constitution has been so distorted as to permit Congress to regulate virtually any activity without concern for whether it constitutes interstate commerce, we have come to the point, as George Will correctly points out, that the courts have quit any pretext to the defense of economic liberties. The Supreme Court no longer inquires into the nature of the commerce, it no longer inquires into the constitutional legitimacy of Congressional control and seeks to determine whether actual interstate commerce is involved. (I know there is a body of law, small, that has to do with Bill of Rights liberties such as the right to bear arms, which have fallen-but the momentum of the law is clearly the other way.)

So we conservatives strive to draw a new Siegfried line of defense, this one drawn at the distinction between controlling and eliminating the personal liberties of those who are not engaged in commerce because the court has largely conceded the power of Congress to control the liberties of those who do engage in commerce-whether interstate or otherwise.

There is nothing in the Constitution to support this principle so we are dredging one up in desperation having lost the main battle. This is why I have forecast for years now that Obama care is not unlikely to be approved by the Supreme Court. Although I applaud this effort to find a new rationalization which the court can use this year to defend the Constitution, the opinion of conservative Judge Silverman should warn us that the dike has broken, new levies no matter how clever are unlikely to stay the flood, at least for long.

But the constitutional wreck which this outrageous expansion of congressional encroachment on our liberties presents is much worse than it appears on the surface.

The problem is that it is only in the name of Congress that our liberties are being encroached the actual dirty work is being done by a bureaucratic machine. In essence, Congress has stolen our liberty, the decision whether or not to buy insurance, and fenced to the bureaucrats. Once this law becomes constitutionally sanctioned by the Supreme Court, the actual administration of the law is given over with virtually no guidelines, or at most vague and unchallengeable limits, to bureaucrats' arbitrariness. But the reality is more than the mere administration of the law, the power to make policy, and the most important policy at that, is also left to the bureaucrats with no real check or oversight.

Once the bureaucrat makes a decision defining the kind of insurance you must have, or the kind of treatment you can get because your condition or disease does or does not qualify, it in effect becomes law. Yes, that policy is subject to review by Congress but that means, apart from the illusion of judicial oversight, only a super majority of Congress plus the acquiescence in the reform by the president can get that law changed.

There is no effective control in a government constitutionally splintered by checks and balances. This stands the Constitution on its head. Here in a very real and important sense we have a unelected bureaucrat making laws which can only be overturned by a supermajority. If the real power is actually wielded by a "Czar" who is not even subject to confirmation, we have not a representative democracy but a tyranny.

This is clearly an unconstitutional and improper delegation of the responsibility of the article One Congress to do its duty under the Constitution and subject that legislation to the vote of the people. I have a chance to vote against my representative who would impose health care I do not want upon me and my family, but what chance do I have to influence a bureaucrat if I need a super majority in Congress?

Finally, it is small comfort in our effort to draw these lines arbitrarily without reference to the Constitution as we are now forced to ask the Supreme Court to do, because we are asking the Supreme Court to rule against human nature-their own.

As long as the court gets to draw the lines where it fancies them, they retain power. We are asking them to give that up and make themselves irrelevant. Once they rule that the statute is unconstitutional because we cannot compel people not engaged in commerce, the Supreme Court loses a whole potential field in which to exercise its power to draw new lines. It is not in human nature, unless one is named George Washington, to voluntarily relinquish power.

The old adage, "the power to tax is not the power to destroy so long as this court sits" is mocked by history. The power to tax is pernicious enough but the power to regulate can be equally mortal. We simply cannot rely on the courts to draw new lines as much as they might relish the role and it is folly to expect a super majority to be our salvation.

§ 1075 The constitution is one of limited and enumerated powers; and none of them can be rightfully exercised beyond the scope of the objects, specified in those powers. It is not disputed, that, when the power is given, all the appropriate means to carry it into effect are included. Neither is it disputed, that the laying of duties is, or may be an appropriate means of regulating commerce. But the question is a very different one, whether, under pretence of an exercise of the power to regulate commerce, congress may in fact impose duties for objects wholly distinct from commerce. The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments.
Joseph Story, Commentaries on the Constitution

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The judge, Silberman, assumed there is no difference between regulating commerce (ongoing activity) and forcing behavior. This is idiotic, but it is even more idiotic not to read the section of the Constitution in which this regulation of commerce appears. Note that "foreign nations" appears in the list PRIOR TO "the several states". In other words, any definition of "commerce" that applies to the second cannot also apply to the first, foreign nations.

Who among us is willing to read the Constitution to say that "Congress can 'force' foreign nations to buy things against their own will?" That is why this is an idiotic conversation. There is no way to get there short of conquering those nations. Does this mean the "commerce clause" enjoins the U.S. to conquer the world?

Besides, back to the ignorant of the Constitution discussion at hand, if I want to regulate football, then I have to have football in order to regulate it.

The notion that I can force people to go play football is NOT assumed in the authority to regulate the football that does exist.

Silbermann doesn't understand the implication of existence that is assumed in the words "commerce" and "regulate." He doesn't speak as if he's even read the line in which "commerce" and "foreign nations" is mentioned.

Furthermore, if this passage means as suggested, then Congress' power of "regulation of the land and naval forces" means that we all can be called an army and be regulated in a military fashion by the Congress.

hmmm - there is of course a limit - our God-given liberties. What it takes to remind all three federal branches of these, much less local government, is a question I cannot answer.

It may take a sea-change that begins with rejecting the mantra “conservative enough to win general elections, but not too conservative”. I think many things are going to be broken down to the foundations and remade, not through violence from the Right, but from reactionary violence from the Left (the ones threatening to throw Molotov cocktails through store windows and raping women in their protest camps).

In this country, at the moment, The Right wants the power to defend itself and provide for itself; the Left wants the power to take, intimidate, and injure a few so as to intimidate others and take from others. The party that embraces the power to create wealth and argues successfully that the ability to prosper comes through, not in spite of, our inalienable rights, will win, but it will be grueling.

Wish I could be more optimistic.

GeronL wrote: “A simple amendment would be better. Congress shall make no law governing the private economic actions of individuals.”

The Constitution already does this with the 10th Amendment. The problem is the federal government did a power grab by making the commerce clause extend to regulating the people.

Read the Commerce clause closely: note the Capital “S” on the term States. Then read up the long discussion on the difference between “the State” and “the people” in Heller vs DC.

A strict interpretation of the commerce clause reads the feds can only regulate state entities interacting with other state entities. Nowhere does the language of the commerce clause give the fed power to declare its own prohibition without an amendment, nor does its authorize the federal government to regulate the people.

So an amendment like you suggested would be ignored, since they already ignore most of them anyway.

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