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Yesterday's decision proves once again we cannot count on the courts to overturn ObamaCare.
On a 2 to 1 decision, the US Sixth Circuit Court of Appeals upheld the constitutionality of the individual mandate -- the ObamaCare mandate requiring everyone to purchase government-controlled health insurance.
This does not resolve the issue. The lower federal courts are divided on the issue, and the Supreme Court will have to step in to finally resolve the issue as a legal matter.
But supporters of health care freedom should be concerned by the opinion of Judge Jeffrey Sutton, upholding the mandate. Judge Sutton was appointed by a Republican president, George H. Bush. He clerked for a Republican Justice, Antonin Scalia. And he is known to favor federalism and the 10th Amendment. Yet Judge Sutton laid out several reasons why the courts should NOT strike down the mandate as unconstitutional.
First, he said that courts should wait until the mandate is actually takes effect (January 1, 2014), AND someone files a lawsuit claiming to be harmed by it, before they decide on its consitutionality.
Second, he disputed the notion that there is a meaningful distinction between action and inaction in regulating health insurance. Mandate opponents have argued that Congress may regulate economic activity under the Commerce Clause, but not inactivity. Judge Sutton thinks such a distinction is not a workable framework for limiting the scope of the Commerce Clause.
The US Supreme Court is expected to resolve this issue by late June of 2012.
We cannot count on the Court to protect our health care freedom. That's why we at FreedomWorks are fighting non-stop to pass legislation to repeal and replace ObamaCare with a patient-centered health care system.
Dean Clancy is FreedomWorks's Legislative Counsel and Vice President, Health Care Policy