The Death Of Enumerated Powers: Responding To DC Circuit Court Of Appeals Upholding Of Obamacare Mandate As ConstitutionalThe D.C. Circuit Court of Appeals recently upheld the Obamacare individual mandate forcing American citizens to purchase health insurance as Constitutional under the Article I, Section 8, Clause 3 enumerated power to "regulate Commerce...among the several States." The majority opinion was written by Judge Laurence Silberman, appointed by President Ronald Reagan. Silberman is the first Republican judicial appointee to actually author an opinion upholding Obamacare. This is the same judge that authored an influential opinion in District of Columbia v. Heller finding that the Second Amendment protected an individual right to bear arms, a decision upheld by the United States Supreme Court in a landmark gun rights ruling. This shows either one of two things: that even more conservative legal theorists can drastically misunderstand the Constitution, or that Supreme Court precedent is so unlimited and broad in the arena of Commerce Clause jurisprudence that he felt compelled to uphold this as well. In fact, both can be true in this case, but I shall focus on this judge's more basic flawed approach to the Constitution rather than bother dissecting wrongheaded Supreme Court precedent.
In order to understand where Judge Silberman went wrong one must read one key passage from his opinion. Judge Silberman 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. 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.There is so much that is problematic with this passage that it alone is worthy of my full response. It is these few sentences which alone show how foolhardy the D.C. Circuit ruling is, and how far the judiciary so often strays from the most basic of Constitutional principles. The judge acknowledges only "some discomfort" at the idea that there is no principle at all "limiting congressional mandates that any American purchase any product or service in interstate commerce." This should not be a matter of slight "discomfort," it is the very crux of the case against Obamacare's mandate. That any judge, let alone a supposedly conservative one, could write that an unchecked federal power with no discernible limiting principle is only a matter of "some discomfort" is itself ample evidence of how far the judiciary has strayed from the Constitutional structure originally envisioned by the ratifiers of the Constitution. What Silberman allows for is the Constitutionally impossible: a federal plenary power that far exceeds the scheme of enumerated powers, in addition to a federal police power. This opinion is clearly making a mockery of the bedrock of all Constitutional principles found in Marbury v. Madison that “[t]he powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”
Silberman goes on to "tell the truth," that there are no limits on federal power to be found emanating from his ruling, yet he refuses to then do the obvious and ergo declare Obamacare's individual mandate unconstitutional. The reason for this is "because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right." That the judge realizes there are problems with inventing new Constitutional rights out of whole cloth is admirable, but it should be obvious that it is equally troubling to allow Congress new unprecedented powers that exceed the scope of those provided within the Constitution. This makes a mockery of the Ninth and Tenth Amendments and turns the original meaning of those provisions on their head. The Bill of Rights was ratified a few years after the Constitution was ratified. The Constitutional structure of enumerated powers ratified in 1789 was to be the promised primary protection of the people's rights. James Madison famously wrote in Federalist No. 45 in 1788 that "[t]he powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite." It was this structure of limited federal power, coupled with the remaining reservoir of authority to be found with the people and their State legislatures, that the proponents of the Constitution promised would protect from an overarching federal government of unlimited powers that would trample the rights of the people. Governor Edmund Randolph explicitly told the Virginia Ratifying Convention in 1788 that "the best security that can be in" a "body arising from a compact, and with certain delineated powers" is "the express enumeration of its powers."
The enumerated powers have not been taken seriously for far too long. In fact, the very notion of limited federal power has been gutted by the modern Supreme Court since the New Deal era. The enumerated powers are a list of items found in Article I, section 8 of the U.S. Constitution that set forth the authoritative capacity of the United States Congress. The 10th Amendment states that all prerogatives not vested in the federal government nor prohibited of the states are reserved to the states and to the people, which means that the only prerogatives of the Congress are limited to those explicitly stated in the Constitution of the United States. This most elementary notion is unfortunately forgotten, ignored, or misconstrued by too many academics and judges. It is critical to therefore reiterate the original scheme of enumerated powers envisioned during the debates over the Constitution's ratification. A sampling of but a few (and there are many more) from those that supported the Constitution's ratification is therefore appropriate:
James Wilson, Pennsylvania Ratifying Convention, 1787: "Whoever views the matter in a true light, will see that the [federal] powers are as minutely enumerated and defined as was possible, and will also discover that the general [welfare] clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted."
Gov. Edmund Randolph, Virginia Ratifying Convention, 1788: "[T]he gentleman supposes that complete and unlimited legislation is vested in the Congress... This...is founded on false reasoning... [I]n the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it?--for if its powers were to be general, an enumeration would be needless."
James Madison, Virginia Ratifying Convention, 1788: "[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction."
James Iredell, North Carolina Ratifying Convention, 1788: “[The Constitution] is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before, that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell?--or could he, without absurdity, say, 'Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.'"
James Iredell, North Carolina Ratifying Convention, 1788: "Nor shall the said Congress...exercise any act of authority over any individual in...the...states, but such as can be justified under some power particularly given in this Constitution; but the said Constitution shall be considered at all times a solemn instrument, defining the extent of their authority, and the limits of which they cannot rightfully in any instance exceed."
Alexander Hamilton, Federalist No. 83, 1788: "The plan of the [Constitutional] convention declares that the power of Congress...shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended."
Judge Silberman would have you believe that the federal government is of unlimited authority under the Commerce Clause, and not the Constitution of strict enumerated powers promised when the Constitution was actually ratified. He openly is willing to uphold an admittedly boundless federal power without a limiting principle. The D.C. Circuit acknowledges what Judges Dubina and Hull wrote in their jointly-authored Eleventh Circuit opinion overturning the individual mandate: "Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none." Yet the latter court rightly respected the principle of an enumeration of powers, while the former dangerously defied it.
This is precisely why with the Supreme Court announcing they will be deciding this case next year, the very essence of our Constitutional republic hangs in the balance. The Supreme Court need only remember two words in order to legitimately overturn the Obamacare individual mandate: Enumerated Powers.