Our colleague Hadley Heath has already given a nice summary of the 2-1 decision of the by the Six Circuit that handed a victory to the government in the Thomas More Law Center’s suit against Obamacare. I do have to chastise the always modest Hadley, however. Avik Roy, one of the very best writers following the Obamacare suits, cited Hadley’s excellent Health Care Lawsuits website-and Hadley didn’t brag. But I will–if you want to keep abreast of the Obamacare lawsuits, bookmark Hadley’s site.

Speaking of Roy, who blogs as The Apothecary at Forbes, he had some very good material on the disappointing decision. His headline is…

Sixth Circuit Punts on Obamacare’s individual Mandate

The decision was distressing, even though we all know this is a case that will be decided by the Supreme Court. Roy notes that this is the first time a Republican-appointed judge has upheld the mandate. The government owes its victory to Jeffrey Sutton, a George W. Bush appointee. Roy notes:

Sutton gets to the key question on page 51, “the lingering intuition-shared by most Americans, I suspect-that Congress should not be able to compel citizens to buy products they do not want.” But he says, unpersuasively, that health care is different, because it involves “regulating how citizens pay for what they already receive.” He points out that Congress could pass a universal healthcare tax and deduct it for those who buy insurance, achieving the same thing as a mandate-which is true, but hardly means that a mandate is constitutional.

In sum, Sutton asks the right questions, but fizzles on the answers.

 James Graham, a Reagan appointed, dissented:

As Graham points out, “no prior exercise of [the Commerce Clause power] has required individuals to purchase a good or service. This fact alone does not answer the constitutional question, but it does highlight the need for judicial scrutiny.” Graham is the only judge of the three who actually gets the key point: “the requirement that all citizens obtain health insurance does not depend on them receiving health care services in the first place.”

Graham points out, rightly, that “the mandate and its penalty are not conditioned on the failure to pay for health care services, or, for that matter, conditioned on the consumption of health care.” He gets it. “The proper object of Congress’ power is interstate commerce, not private decisions to refrain from commerce.” He points out, unlike the other judges, that “the free-riding problem is substantially one of Congress’ own creation.”

Graham gets to the heart of the matter: that if Congress can force people to buy insurance, it can force people to do just about anything. Taking on the government’s “common refrain” that health care market is constitutionally unique, and therefore that the mandate doesn’t have broader implications, he writes that “this assurance is troubling on many levels and should hardly be heard to come from a body with limited powers.”

This lawsuit is important–it tests whether those powers will remain limited.