We have evidence in the past several days that the grounding for the expectation of a judicial firewall that might bail the country out of the disastrous impact of the Obama health care plan is shaky at best. And this is not just because the DC Circuit Court of Appeals upheld the law, but because of the surprising reasoning of the majority opinion written by Judge Laurence Silberman, a Reagan appointee, in doing so. This is the troubling language in his opinion: “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins”. This from someone supposedly from the conservative legal movement who didn’t figure to be a champion of a limitless Commerce Clause, but yet who compared the case under review to one decided in 1942 in which the Supreme Court held that Congress could limit wheat growing for personal consumption because in the aggregate it could affect national markets! And he went further in casually acknowledging that one consequence of a federal mandate to purchase health insurance could result in a new police power under the Commerce Clause. This is not an encouraging development and is further confirmation of the perversity of relying on the judicial branch to correct a horrendous political mistake and to finally determine the governing structure of the nation’s health care system.
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