Silberman evidently was troubled by that shifty answer. Last week, he expressed "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." Oddly, he voiced that concern in the context of a majority opinion upholding the health insurance mandate. Dissenting Judge Brett Kavanaugh congratulated the majority for its candor in "admitting that there is no real limiting principle to its Commerce Clause holding."
For the sake of our teetering federalist system, which helps preserve liberty by restricting the national government to specifically enumerated powers, let's hope the Supreme Court can locate the limit Silberman could not. On Monday, the Court agreed to review an Aug. 12 decision by the U.S. Court of Appeals for the 11th Circuit, which unlike the D.C. Circuit deemed the insurance mandate unconstitutional, saying Congress may not "compel individuals to enter into commerce so that the federal government may regulate them."
If Congress had that authority, Judge Joel Dubina warned in the majority opinion, it would be free to dictate all manner of transactions, beginning with other forms of insurance and extending to decisions about housing, education, investing and saving for retirement. In fact, he said, if a decision not to buy something can trigger federal intervention, provided it has a "substantial effect" on interstate commerce when combined with similar choices by millions of other individuals, "we are unable to conceive of any product whose purchase Congress could not mandate."
Which brings us back to broccoli. Dissenting from the 11th Circuit's decision, Judge Stanley Marcus said health insurance is not like broccoli because failing to buy it imposes costs on others. Thanks largely to a federal law that requires hospitals to treat people regardless of their ability to pay, taxpayers and policyholders pick up the tab for treating the uninsured.
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