- The Washington Times - Wednesday, June 15, 2011

I reluctantly disagree with a contention made in “Judges seem receptive to health care challenge” (Page 1, June 9) about the Obamacare lawsuit pending before the 11th U.S. Circuit Court of Appeals.

Writer Stephen Dinan optimistically observes that in light of the recent hearing before a three-judge panel of the court, the judges “seemed wary of approving a major expansion of government coercion over the economic activity of millions of Americans.” Unfortunately, Judge Frank Hull, one of the two Clinton appointees on the panel, seems to have bought into the government’s argument that “refusing to buy insurance was still an economic decision” and hence a matter properly subject to regulation under the commerce clause of the Constitution. The other Clinton appointee, Judge Stanley Marcus, ludicrously wondered “whether the courts should second-guess Congress‘ decisions,” as if to suggest that it would be inappropriate for courts to rule on the constitutionality of laws passed by Congress. If these remarks are signs that the two Clinton appointees agree with the government, the case would result in two-to-one decision upholding the constitutionality of the Obamacare law, leaving Judge Joel Dubina, a George H.W. Bush appointee, to cast a dissenting vote.

Judge Dubina was right to raise the question “[i]f we uphold the individual mandate in this case, are there any limits on Congress‘ power left?” The answer, simply stated, is that there would be no limit - a scary thought, to say the least. Think of it: Congress would be free to mandate the purchase of anything under the sun, such as a pamphlet containing the works of Karl Marx, a windmill for every backyard and solar panels for every house roof.

Moreover, a decision not to buy health care insurance is a mental act, not a physical one. Does this mean Congress would have the power to regulate mental activity if the constitutionality of the Obamacare law is upheld? If so, our liberty is doomed.

In the end, as Virginia Attorney General Kenneth Cuccinelli aptly noted, the Obamacare litigation is about liberty, not just health care.

HARRISON E. MCCANDLISH

Alexandria