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.”
Modern judges do not need to speculate what the founding generation understood these words to mean when they were written into the text of the Constitution. Chief Justice John Marshall — himself one of the ratifiers of the Constitution — told us what they mean in the 1824 case of Gibbons v. Ogden. Marshall wrote that there is “no sort of trade” that the words “regulate Commerce” does not apply to. He said that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” And he told us that Congress’ power to regulate commerce “among the several states” applies to all trade that “concern more states than one.”
So when Congress passes a nationwide law regulating the entire national health care market, there is simply no question that the law is constitutional. The law regulates a form of trade — trade for health services — and it regulates a health services market that is both pervasive and nationwide. The Affordable Care Act cases are some of the easiest cases to cross the Supreme Court’s bench in a generation, and it is nothing less than shocking that even a handful of judges have struck the law down.
Indeed it is far worse than shocking — it is downright dangerous. Judges are not like members of Congress. They are unelected and they serve for life. As such, they cannot be checked by fear of a lost election and can only be checked by their loyalty to our written Constitution. If the federal judiciary has the power to ignore the text of the Constitution to strike down laws that they do not like, then there is literally nothing that they cannot do. If the Supreme Court defies our written Constitution just once, there is nothing preventing them from doing so over and over again. Indeed, if the justices strike down the Affordable Care Act, there is nothing preventing them from forcing every American to eat broccoli.