The Sixth Circuit Sharpens the Questions

by Matthew J. Franck

By a 2-1 vote today, a Sixth Circuit Court of Appeals panel has upheld the individual mandate in ObamaCare.  Judge Jeffrey Sutton’s concurrence and the dissent of District Judge James Graham (sitting by designation) sharpen the arguments considerably.  Graham’s is one of the best available opinions arguing that the mandate is an unconstitutional exercise of the commerce power.  And Sutton’s is far and away the best defense of the mandate’s constitutionality yet published.  It could also, of course, be read as a very large query to the Supreme Court: Are you serious about judicially enforced limitations on the commerce power?  Because if so, here is the mess in your own precedents that you would have to clean up to get serious about it.  On the other hand, if you’d rather not, there’s always politics . . .

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