Republican judges wrestle constitutionality of Obamacare mandate

If it is something new that hasn't been previously approved by the Supreme Court, it seems like an easy decision. From the WSJ:

Judges on a federal appellate court suggested Friday that last year's health-care overhaul was an unprecedented assertion of power by the government, but they didn't clearly signal a readiness to strike down the law.

The court at times questioned whether it even had jurisdiction to consider the case, an issue that could delay an ultimate resolution on the law's constitutionality.

Judges Brett Kavanaugh and Laurence Silberman, conservative members of a three-judge panel that presided over two hours of oral argument, said they worried about the implications of allowing Congress to require that individuals either purchase health insurance or pay a penalty.

"In 220 years…Congress has never once mandated a purchase," Judge Kavanaugh said in proceedings at the U.S. Court of Appeals for the District of Columbia Circuit. But he went on to concede that the health-care law's guarantee of insurance coverage for Americans "won't work without the mandate." . . .

Judges Kavanaugh and Silberman pressed the Justice Department, which is defending the law, to lay out a workable principle that would limit the ability of Congress to require citizens to make other types of purchases in the future.

Judge Kavanaugh, an appointee of President George W. Bush, said that if lawmakers could require citizens to maintain health insurance, logic would also suggest Congress could mandate that citizens invest in private retirement accounts to address a crisis in Social Security. . . .

Judge Silberman, a Reagan appointee, said the health-care law's challengers faced a high hurdle because of a 1942 Supreme Court ruling, Wickard v. Filburn, that allowed the federal government to regulate the wheat a farmer grew for personal use on his own farm.

"In a sense, that is a greater exercise of governmental power than this case," he said. . . .



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