As my doctor likes to say just before subjecting me to something really painful: "you may feel some discomfort." Well, the DC Circuit today confessed to feeling "discomfort" over its decision, but it went ahead and upheld the constitutionality of Obamacare's individual mandate. Sadly, the court's opinion was written by Laurence Silberman, a Reagan appointee who has authored some fine opinions in the past. Silberman swallowed the argument that the Commerce Clause allows the federal government to regulate economic "decisions," which is a polite way to say that government has every right to coerce people into particular transactions.
Silberman's "discomfort" arises from the fact that the government has offered no principle by which to limit this new-found power to regulate "decisions." Silberman tries to reassure us that we won't see "individual mandates" popping up all over the place, because "the health insurance market is a rather unique one, both because virtually everyone will enter or affect it..." But he's dead wrong. Health insurance is not unique, not even "rather unique" to use Silberman's grammatically-challenged phrase. Everyone will, for example, "enter or affect" the market for clothing, food, and toilet paper. There's nothing about health insurance to justify the government's attack on liberty.
Judge Brett Kavanaugh (whose praises I have sung elsewhere on Ricochet) issued a long dissent arguing that the appeal was premature -- that the constitutional issue is not ripe until the mandate takes effect in 2014. But by way of chastising the majority for reaching a premature conclusion, he mentions the implications of their decision:
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.
On to the Supreme Court? Warning: you might experience some discomfort.