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Circuit Courts Courageous Action is a Blow for Freedom

The opinions expressed by columnists are their own and do not necessarily represent the views of

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 will force uninsured Americans to buy health insurance or else 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 March 22, 2010, "breathtaking in its expansive scope." And 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 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 that he spent more than a year battling on Capitol Hill against a furious groundswell 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, under penalty of law, health insurance plans under the guise of the Constitution's Commerce Clause, then they can compel us to purchase almost anything.

The appellate court said that if we let Congress to get away with this, then "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 that it said Congress cannot violate:

"... what 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 concerns the government's false claim that the financial charge it would 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 decisions, 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.

The case that the appeals court decided against the government was filed in Florida by 26 states, along with the National Federation of Independent Business, the nation's small-business association whose members will be hit hard by $52 billion in new taxes under the health care law.


Douglas Elmendorf, director of the nonpartisan Congressional Budget Office, testified before the House Budget Committee in February that Obamacare will result in 800,000 fewer jobs at a time when good-paying jobs are in short supply.

But something else is at stake here in a legal battle that will end up being decided by the highest court in the land. "As with so many other issues in this historic debate, it ultimately all comes down to freedom -- and whether it will be lost or preserved pending decisions by the Supreme Court and the voters next year," Turner writes.

The 11th Circuit Court's unflinchingly courageous ruling lays out the deeply disturbing reasons why Obamacare poses the single greatest threat to freedom by an all-powerful federal government.

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