If the federal government can require people to purchase health insurance, what else can it force them to do? More to the point, what can’t the government compel citizens to do?
Those questions have been the toughest ones for the Obama administration’s lawyers to answer in court appearances around the country over the past six months. And they are likely to emerge again if, as expected, the Supreme Court, as early as Monday, agrees to be the final arbiter of the challenge to President Obama’s signature health care initiative.
Neverthless, Judge Laurence Silberman voted with a majority of a three-judge panel of the 11th Circuit to uphold the law. Jon Healey writes at The Los Angeles Times:
Citing Supreme Court Justice Antonin Scalia's concurring opinion in Gonzales v. Raich, a lawsuit that unsuccessfully challenged the feds' seizure of marijuana plants grown ostensibly for medicinal use, Silberman wrote: "A single individual need not even be engaged in any economic activity -– i.e. not participating in any local or interstate market -– so long as the individual is engaged in some type of behavior that would undercut a broader economic regulation if left unregulated. And a single individual need not even be engaging in the harmful activity that Congress deems responsible for a national economic problem; it is enough that in general, most do."
In dissent, Judge Kavanaugh praised the majority for its honesty in describing what followed from its ruling.
“The majority opinion here is quite candid — and accurate,” he wrote, adding: “The majority opinion’s holding means, for example, that a law replacing Social Security with a system of mandatory private retirement accounts would be constitutional. So would a law mandating that parents purchase private college savings accounts.”
Within hours of the decision on Tuesday, opponents of the health care law were issuing statements, and their theme was predictable. “Like the government,” said Randy E. Barnett, a law professor at Georgetown, “the majority could identify no limit to an unprecedented power of Congress.”