- The Washington Times - Tuesday, August 16, 2011

ANALYSIS/OPINION:

President Obama’s scheme to take over America’s health care system is in critical condition. On Friday, a federal appellate court in Atlanta struck down the individual mandate, a key component of Obamacare. This decision conflicts directly with the clean bill of health previously given to the entire law by the U.S. Court of Appeals for the 6th Circuit in Ohio. With the 4th Circuit expected to rule soon on Virginia’s challenge, the circuit split sets the stage for the Supreme Court to resolve the matter in the next term, hopefully putting this expensive and unnecessary program out of our misery.

“Breathtaking” was the term the 11th Circuit’s 2-1 decision used to describe the “unlimited scope” of the law that will force individuals to buy health insurance. The judges found Obamacare to be an expression of power far beyond what is granted to the federal government by the Constitution under the commerce clause. “Given the economic reality of our national marketplace, any person’s decision not to purchase a good would, when aggregated, substantially affect interstate commerce in that good,” the majority reasoned. “From a doctrinal standpoint, we see no way to cabin the government’s theory only to decisions not to purchase health insurance.”

Were the courts to accept the individual mandate as constitutional, there would be nothing left of the Founders’ vision of a federal government of limited and enumerated powers. There are no limits left if Washington can order people to purchase certain products from cradle to grave. This is an argument that is seriously accepted in academic and political circles.

Fortunately, the 11th Circuit, just like all the others, dismissed the administration’s laughable claim that the mandate was just another “tax” levied under the federal government’s ordinary taxing power. This case ultimately is about whether the commerce clause has fundamental limits.

Even though the 11th Circuit panel found the individual mandate was severable from the rest of the legislation, the fact is that the mandate is essential for Obamacare to be financially feasible. If insurers are required to cover pre-existing conditions and cannot refuse coverage to anyone, there is no reason for a person who is healthy to buy insurance. It would make more sense to wait until you are sick to buy insurance. The point of the individual mandate was to address this problem by requiring everyone to buy insurance coverage determined by the government. Without the mandate, the entire scheme collapses like a house of cards.

The fate of Obamacare is more uncertain than ever. The Justice Department can ask for an en banc hearing of all the judges on the 11th Circuit, or the case can proceed to the Supreme Court. The 26 states who were parties to the appeal are now on a stronger legal footing to delay implementation of the health care exchanges and the law’s other burdensome requirements. Implementing Obamacare is going to be very expensive, as is becoming increasingly clear, and the wiser course would be to delay dumping billions of dollars into new regulations and bureaucracies.

The Republican House needs to play a stronger hand by refusing to appropriate any funds to implement Obamacare in the upcoming budget showdown. The Supreme Court also has the duty of stepping in and undoing the damage it has done since the New Deal. The return to the practice of limited government is long overdue.

Nita Ghei is a contributing Opinion writer for The Washington Times.

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