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Did Judge Silberman ask the Supreme Court to rein in Congress?

RGNStPaulsTwo notes on the court challenges to Obamacare:

First: The Supreme Court has agreed to hear the challenge to the law’s expensive and humiliating Medicaid mandates on the states. The Court did so although no lower court has yet overturned those mandates.

This is clearly the correct decision. Those mandates appear to violate even the modern Supreme Court’s permissive rules defining how far the federal government can go in forcing the states to adopt federal policies.

Second: Many in the mainstream media have been celebrating the D.C. Court of Appeals’ decision upholding Obamacare—particularly because it was written by Judge Lawrence H. Silverman, who has a reputation as being relatively conservative. However, all except columnist George Will have disregarded a central aspect of that opinion (and Will caught it only partially).

In his opinion, Judge Silberman first reviewed the modern Supreme Court Commerce Power cases, which, of course, are controlling on his court. He concluded that their reasoning seems to sustain the health control law. However, the Supreme Court also has said repeatedly that the Commerce Power has limits, and during the litigation both judges and plaintiffs challenged the government with the question, “If under the Commerce Power the federal government can force people to purchase products they neither want nor need, then what are the limits on that power?”

In his court, as elsewhere, the government was unable to answer that question. Judge Silverman wrote:

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.

This passage contains a message to the Supreme Court: “If the Commerce Power has limits, as you say it does, then you must tell us what they are. And in doing so, please pare back the scope of your modern cases so those limits are more apparent.”

Judge Silberman’s opinion is, in other words, an implicit invitation to the Court to, in Justice Clarence Thomas’ words, “temper” the Commerce Power—to reduce the scope of Congress’ power to render it more consistent with the Constitution’s actual meaning.

Rob Natelson