WASHINGTON – Shortly before the Supreme Court agreed to rule on the constitutionality of Obamacare’s individual mandate, the U.S. Court of Appeals for the D.C. Circuit affirmed, 2-1, its constitutionality. Writing for the majority, Judge Laurence Silberman, a Reagan appointee, brusquely acknowledged that upholding the mandate means there is no limit to Congress’ 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’ enumerated power to regulate interstate commerce empower it to compel individuals, as a condition of living in America, 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.”

Some discomfort about saying limited government is essentially a fiction? Silberman’s distinction between interpreting the scope of a government power and recognizing a right is spurious because rights begin where powers end.

So argues Florida International University’s Elizabeth Price Foley, constitutional litigator for the Institute for Justice. She is amazed by Silberman’s disregard of “the inherently symbiotic relationship between the scope of government powers and individual rights.”

She says Silberman has two false assumptions. One is that Congress compelling acts of commerce is “symmetrical” with prohibiting or regulating commerce. The other is that the lack of any principle to limit Congress when purporting to regulate interstate commerce is unimportant because it concerns only government power, not an important liberty interest of individuals.

Silberman’s supposed symmetry between compulsion and regulation ignores the momentous invasion of liberty by the former. If compulsion is authorized whenever Congress touches anything affecting commerce, this Leviathan power dwarfs all other enumerated powers.

Seventy-five years ago the Supreme Court stopped defending many liberty interests it decided were unimportant. Since the New Deal, Foley says, the court has, without “textual or even contextual basis,” distinguished between economic and non-economic liberty. The latter has received robust judicial support. But economic liberty – freedom of individuals to engage in, or not engage in, consensual commercial transactions – has received scant protection against circumscription or elimination by government. This denial of judicial protection has served the progressive agenda of government supervision of economic life.

Judge Brett Kavanaugh, dissenting on the D.C. circuit court, dryly praised Silberman’s “candor” in “admitting that there is no real limiting principle” to the Commerce Clause jurisprudence embraced by the court’s majority. Kavanaugh, like Foley, emphasizes the asymmetry between, on the one hand, regulating or prohibiting commercial activity and, on the other hand, compelling such activity.

He says the limitlessness means “a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts.” Kavanaugh rejects the majority’s (Silberman’s) attempt “to mitigate the dramatic implications of its no-limiting-principle holding” by noting that “Congress is subject to a political check”:

“As the Supreme Court has told us time and again, the structural principles of the Constitution … protect individual liberty. And the courts historically have played an important role in enforcing those structural principles. … That Congress is subject to a political check does not absolve the judiciary of its duty to safeguard the constitutional structure and individual liberty.”

There is an abdication of judicial duty in Silberman’s complacent conclusion, which is: We can articulate no limit on Congress’ 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.

© 2011, Washington Post Writers Group