Silberman also recognized Congress's power to address difficult national problems, like the tens of millions of Americans who lack health insurance but whose eventual use of medical services would inevitably shift billions of dollars in costs onto Americans who must pay higher insurance rates as a result, what courts have described as "substantial effects."
"The shift to the 'substantial effects' doctrine in the early twentieth century recognized the reality that national economic problems are often the result of millions of individuals engaging in behavior that, in isolation, is seemingly unrelated to interstate commerce.
"Its very premise is that the magnitude of any one individual's actions is irrelevant; the only thing that matters is whether the national problem Congress has identified is one that substantially affects interstate commerce....
"It is irrelevant that an indeterminate number of healthy, uninsured persons will never consume health care, and will therefore never affect the interstate market. Broad regulation is an inherent feature of Congress's constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.
"Congress reasonably determined that as a class, the uninsured create market failures; thus, the lack of harm attributable to any particular uninsured individual, like their lack of overt participation in a market, is of no consequence."
Silberman wrote that "Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services -- as rather useless as that would be -- is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce."
He noted that since those challenging the health-care law "cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the [individual] mandate and the lack of a limiting principle," i.e., some example of when the government could not require citizens to purchase a specific product.
Silberman acknowledged that "the Supreme Court occasionally has treated a particular legislative device's lack of historical pedigree as evidence that the device may exceed Congress's constitutional bounds," but added that "we are obliged -- and this might well be our most important consideration -- to presume that acts of Congress are constitutional" absent "a clear showing to the contrary."
Silberman also addressed the core political objection to the health-reform law, its supposed intrusion on individual liberty. He wrote:
"That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before -- but that seems to us a political judgment rather than a recognition of constitutional limitations.
"It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.
"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, no matter how local -- or seemingly passive -- their individual origins."
So, even a very conservative legal scholar examining the Constitution and precedents could not find a convincing argument to overturn "Obamacare" -- and that is because the Founders intentionally and broadly empowered Congress to address national economic problems through the Commerce Clause.
Among the principal advocates of the Commerce Clause were James Madison, the architect of the Constitution, and George Washington, who presided over the Constitutional Convention in Philadelphia in 1787. [See Consortiumnews.com's "Madison: Father of the Commerce Clause."]
But it appears that constitutional principles will have less to do with how the Republican partisans on the Supreme Court rule than the perceived need to advance an ideological and political agenda.
These opponents of the health-care law surely will muster some impressive "lawyering" with lots of high-brow references to various articles and clauses -- just as they did in the Bush v. Gore ruling. But that will mostly be window-dressing to impress those who still believe in the integrity of this Supreme Court.