"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."
He added: "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."
Politicized Rulings
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 empowered Congress to address national economic problems. It was, as the Virginian delegation understood, one of the key reasons for the Constitutional Convention.
That does not mean, of course, that the partisan Republicans who currently control the U.S. Supreme Court might not overturn health-care reform anyway, to deal a blow to Obama right before Election 2012.
Some of the Republican justices have shown before that they would twist the law for partisan ends, such as in December 2000 when they invoked the 14th Amendment to stop the counting of votes in Florida and thus hand the White House to their political favorite, George W. Bush.
It didn't matter that these Republican justices were turning their backs on their prior support for states' rights and their insistence on only following the "originalist" intent of those who wrote the Constitution and the amendments. What was at stake in Election 2000 was more important to them -- who would get to fill vacancies on the federal courts.
Thus, Republican justices William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor suddenly saw in the "equal protection clause" of the 14th Amendment an "originalist" intent by its post-Civil War authors to shield a white plutocrat like George W. Bush from variations in ballot standards in Florida.
That was especially odd for Scalia, who has argued forcefully that the 14th Amendment -- despite its language that no state shall "deny to any person within its jurisdiction the equal protection of the laws" -- does not protect the rights of women or gays because it was originally written to guarantee only the rights of black males.
However, when the power of the presidency was at stake -- and the possibility loomed that a Democratic president might make appointments that would leave the court's right-wing faction in the minority -- Scalia had a remarkable change of heart. [For details, see Consortiumnews.com's "Justice Scalia's 'Originalist' Hypocrisy."]
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