Is there no limit to Congress's power?

Silberman’s supposed symmetry between compulsion and regulation ignores the momentous invasion of liberty by the former. If compulsion is authorized whenever Congress touches anything affecting commerce, this Leviathan power dwarfs all other enumerated powers.

Seventy-five years ago, the Supreme Court stopped defending many liberty interests it decided were unimportant. Since the New Deal, Foley says, the court has, without “textual or even contextual basis,” distinguished between economic and non-economic liberty. The latter has received robust judicial support. But economic liberty — freedom of individuals to engage in, or not engage in, consensual commercial transactions — has received scant protection against circumscription or elimination by government. This denial of judicial protection has served the progressive agenda of government supervision of economic life…

There is an abdication of judicial duty in Silberman’s complacent conclusion, which is: We can articulate no limit on Congress’s power flowing from the Commerce Clause; get over it. This might galvanize a Supreme Court majority to say “Enough!” and begin protecting individual liberty from a Commerce Clause that the court itself has transmogrified into an anti-constitutional gift to Congress of a virtually unlimited police power. This case can begin restoring Madison’s constitutional architecture for a government limited by the enumeration of its powers.