- The Washington Times - Tuesday, August 23, 2011


The federal appeals court ruling that struck down the centerpiece of Obamacare has dealt a massive, possibly fatal blow to the government-imposed health care system passed by a Democrat-controlled Congress over bitter public opposition.

The decision earlier this month by a divided three-member panel in the 11th Circuit Court in Atlanta, with the support of a judge named by President Clinton, condemned a central provision that would force uninsured Americans to buy health insurance or face financial punishment.

The court said the mandate was an unconstitutional extension of government’s excessive regulation of interstate commerce - in this case, requiring people to purchase a private commercial product they may not need, want or be able to afford.

The judges called the legislation President Obama proposed and signed into law on March 22, 2010, “breathtaking in its expansive scope.” They didn’t mean that as a compliment.

The national news media routinely, perhaps grudgingly, reported the court’s decision, but in the days that followed, they seemed to dismiss the ruling as a one-day story with few lasting repercussions.

But the law, after all, was the authoritarian core of the president’s social and economic agenda, one he spent more than a year battling on Capitol Hill against a furious ground-swell of grass-roots opposition that gave birth to the Tea Party revolution and sharply eroded his support among independents and senior citizens who feared the costly reforms would come at the expense of Medicare benefits.

The court didn’t mince words, characterizing the new law’s sweeping mandate as an unprecedented and dangerous assault on the fundamental rights and liberties of American citizens. That’s why its criticisms deserve more attention than they have been given thus far. Like this one:

“This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives,” the court ruled in its 2-1 decision.

The court said that if Congress can force Americans to buy health insurance plans under the guise of the Constitution’s commerce clause under penalty of law, then it can compel us to purchase almost anything.

The appellate court said that if we let Congress get away with this, “there is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks.”

“Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government,” the judges said, adding that “we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”

Further strengthening their argument against the unrestricted reach of the commerce clause to sanction any and all regulation of our personal economic decision-making, the court set forth this self-evident constitutional barrier, which it said Congress cannot violate: “[W]hat Congress cannot do under the overused Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

A key complaint by the court is the government’s false claim that the financial charge it will levy on those who refuse to buy health insurance is actually just another tax, not a penalty.

“Not one of the courts which so far has ruled - no matter what the decision - has agreed with the Obama administration that the penalty for not buying insurance is really a ‘tax,’ ” said Grace-Marie Turner, president of the Galen Institute, a Washington public-policy think tank that has spearheaded opposition to Obamacare.

“The government thinks calling it a tax is its home-free ticket. It’s unlikely to work,” she said in a recent analysis of the appeals court ruling. “Beginning with the district court in this case, all have found, without exception, that the individual mandate operates as a regulatory penalty, not a tax,” the circuit court wrote. It is punishment pure and simple.

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