Bench Memos

Silberman’s Strange Shift

As Ed has noted, the D.C. Circuit has handed down a decision upholding the individual mandate of Obamacare. I agree with Randy Barnett that the following passage is one of the most striking in the opinion:

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.

By my lights, a sweeping federal power without any discernible limit should strike more than “some discomfort” in the heart of any federal judge who believes in limited government.

Judge Silberman’s decision was a foregone conclusion the moment it became clear that his starting point was plenary federal power. Yes, courts must operate on a (rebuttable) presumption that an act of Congress is constitutional, but that is only because Congress is ordinarily expected to respect the constraints placed on it by the Constitution. Specifically, that “all legislative Powers herein granted shall be vested in a Congress of the United States.”  This is the most fundamental restraint on federal power — even more fundamental than the Bill of Rights — because it rejects the very notion of a plenary federal power. In fact, calling this restraint “limited government” is actually somewhat misleading because it conjures up an image of an all-encompassing state but for some enumerated limits on its powers. But in reality, the Founders designed a federal government with no power except what the Constitution specifically grants.

Judge Silberman’s Commerce Clause jurisprudence unfortunately turns this bedrock constitutional principle on its head. He describes a Commerce Clause power that is practically universal and defines it merely by its limitations — rather than treating it as a finite power against a backdrop of authority reserved to the states and people.

Silberman analyzes Congress’s enumerated power “to regulate Commerce . . . among the several States” by concluding that “to regulate” means Congress can command us to do anything related to commerce so long as it does not conflict with some express protection elsewhere in the Constitution. Some may be tempted to think that the situation is not so dire since commerce means, well, commerce. But we shall find little protection from this regulatory power here because the Supreme Court long ago eviscerated any real limits on the word. In fact, Judge Silberman goes so far as to say that there are only two recognized limits on what counts as commerce:  

(1) Congress may not regulate non-economic behavior based solely on an attenuated link to interstate commerce, and

(2) Congress may not regulate intrastate economic behavior if its aggregate impact on interstate commerce is negligible.

This is striking — can we really read the Commerce Clause to confer such a universal power? Take for example, a family’s decision of whether to have one, five, or no children. This choice has an indisputable impact on interstate commerce in the aggregate and, according to Silberman’s view, the state can impose penalties for having the “wrong” number of children, as in China, but for other rights in the Constitution. But recall that the Commerce Clause was drafted and ratified before the Bill of Rights, so, by Silberman’s logic, there may have been a time when the Founders allowed for such a result. 

Now, in his defense, Judge Silberman only purports to apply what the Supreme Court has done with its Commerce Clause jurisprudence, and does hint that he believes it has strayed from the original intent of the Framers. But, in his attempt to respect misguided precedent, Silberman has gotten ahead of the Court. Even the most expansive Commerce Clause cases still approach the question as mapping the contours of a finite power rather than delineating a handful of limitations on an otherwise irresistible authority.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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