The most powerful line in conservative Judge Laurence Silberman’s decision upholding the Affordable Care Act is his simple recognition that the law’s opponents
“cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent.” Today,
the Supreme Court agreed to follow in Silberman’s footsteps — considering whether the judiciary can appropriately strike down a landmark health care law despite the fact that there is nothing in the Constitution allowing them to do so.
There can be no question that Silberman is right about what the Constitution has to say about this law. The plaintiffs’ primary challenge is to the provision requiring most Americans to either carry health insurance or pay slightly more income taxes (there are other issues in this case, which will be discussed in a subsequent post). In their vision of the Constitution, this provision runs afoul of some unwritten rule against being told what to do. The federal government can regulate how people go about the business they are already engaged in, under this vision, but it is utterly powerless to push people to engage in commerce they would prefer to avoid.
There are
many, many problems with this theory of the Constitution, but Silberman’s rebuttal of it is both the most simple and the most elegant. The Constitution says nothing suggesting that people can immunize themselves from the law by remaining passive, it simply provides that the United States may
“regulate commerce…among the several states.”http://thinkprogress.org/justice/2011/11/14/367361/supreme-court-will-hear-health-care-case-at-stake-is-whether-the-text-of-the-constitution-still-matters/
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