Because the commerce clause of the Constitution has been so distorted as to permit Congress to regulate virtually any activity without concern for whether it constitutes interstate commerce, we have come to the point, as George Will correctly points out, that the courts have quit any pretext to the defense of economic liberties. The Supreme Court no longer inquires into the nature of the commerce, it no longer inquires into the constitutional legitimacy of Congressional control and seeks to determine whether actual interstate commerce is involved. (I know there is a body of law, small, that has to do with Bill of Rights liberties such as the right to bear arms, which have fallen-but the momentum of the law is clearly the other way.)
So we conservatives strive to draw a new Siegfried line of defense, this one drawn at the distinction between controlling and eliminating the personal liberties of those who are not engaged in commerce because the court has largely conceded the power of Congress to control the liberties of those who do engage in commerce-whether interstate or otherwise.
There is nothing in the Constitution to support this principle so we are dredging one up in desperation having lost the main battle. This is why I have forecast for years now that Obama care is not unlikely to be approved by the Supreme Court. Although I applaud this effort to find a new rationalization which the court can use this year to defend the Constitution, the opinion of conservative Judge Silverman should warn us that the dike has broken, new levies no matter how clever are unlikely to stay the flood, at least for long.
But the constitutional wreck which this outrageous expansion of congressional encroachment on our liberties presents is much worse than it appears on the surface.
The problem is that it is only in the name of Congress that our liberties are being encroached the actual dirty work is being done by a bureaucratic machine. In essence, Congress has stolen our liberty, the decision whether or not to buy insurance, and fenced to the bureaucrats. Once this law becomes constitutionally sanctioned by the Supreme Court, the actual administration of the law is given over with virtually no guidelines, or at most vague and unchallengeable limits, to bureaucrats' arbitrariness. But the reality is more than the mere administration of the law, the power to make policy, and the most important policy at that, is also left to the bureaucrats with no real check or oversight.
Once the bureaucrat makes a decision defining the kind of insurance you must have, or the kind of treatment you can get because your condition or disease does or does not qualify, it in effect becomes law. Yes, that policy is subject to review by Congress but that means, apart from the illusion of judicial oversight, only a super majority of Congress plus the acquiescence in the reform by the president can get that law changed.
There is no effective control in a government constitutionally splintered by checks and balances. This stands the Constitution on its head. Here in a very real and important sense we have a unelected bureaucrat making laws which can only be overturned by a supermajority. If the real power is actually wielded by a "Czar" who is not even subject to confirmation, we have not a representative democracy but a tyranny.
This is clearly an unconstitutional and improper delegation of the responsibility of the article One Congress to do its duty under the Constitution and subject that legislation to the vote of the people. I have a chance to vote against my representative who would impose health care I do not want upon me and my family, but what chance do I have to influence a bureaucrat if I need a super majority in Congress?
Finally, it is small comfort in our effort to draw these lines arbitrarily without reference to the Constitution as we are now forced to ask the Supreme Court to do, because we are asking the Supreme Court to rule against human nature-their own.
As long as the court gets to draw the lines where it fancies them, they retain power. We are asking them to give that up and make themselves irrelevant. Once they rule that the statute is unconstitutional because we cannot compel people not engaged in commerce, the Supreme Court loses a whole potential field in which to exercise its power to draw new lines. It is not in human nature, unless one is named George Washington, to voluntarily relinquish power.
The old adage, "the power to tax is not the power to destroy so long as this court sits" is mocked by history. The power to tax is pernicious enough but the power to regulate can be equally mortal. We simply cannot rely on the courts to draw new lines as much as they might relish the role and it is folly to expect a super majority to be our salvation.
