Excerpt From Sixth Circuit Court Of Appeals Dissent Of Judge Graham In Thomas More Law Center v. Obama On Obamacare Mandate

Judge Graham wrote in dissent on June 29, 2011:

"The government recites the common refrain that the health insurance market is unique and attributes this to some blend of free-riding, adverse selection, universal participation, and unpredictability as to when and how much care might be needed. This should comfort the court, the government says, because Congress will not need to resort to such measures as the mandate again, or at least not very often. The free-riding problem is substantially one of Congress’s own creation, and the adverse selection problem will be exacerbated by the guaranteed issue provision, in that supply will be guaranteed to high-risk individuals. Though these policies might be reasonable, Congress’s compassion does not allow it to exceed the limits of its constitutional powers. Again, the mandate does not wait until an individual participates in the market for health care. This assurance is troubling on many levels and should hardly be heard to come from a body with limited powers. The uniqueness that justifies one exercise of power becomes precedent for the next contemplated exercise."

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"If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment." Tweet