In a major victory for opponents to President Barack Obama’s healthcare law, the United States Court of Appeals for the Eleventh Circuit in Atlanta has ruled that the individual mandate provision is unconstitutional. The decision affirmed part of a January ruling by U.S. District Judge Roger Vinson of Florida.
As expressed in prior columns, I share the concerns over federalism raised by the individual mandate. Before the law was passed, I warned that this provision was the most vulnerable and that the risk of such challenges could have been avoided by better drafting of the law. However, the Democratic leadership decided to push the law through on a thin margin without changes.
I have stated before that I believe that the cases favor Congress in the lower courts, but that there is strong precedent on both sides. Obviously, both challenging the law are emphasizing United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995) and United States v. Morrison, 529 U.S. 598, 120 S. Ct. 1740, 146 L. Ed. 2d 658 (2000). The Court stated in Morrison that it would not accept “the argument that Congress may regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.” Id. at 617. In Lopez, the Court required more than what Professor Fried appears to demand in the nexus to support federal authority. In striking down the Gun-Free School Zones Act, the Court found that the claim could not be sustained “under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.” Lopez, 514 U.S. at 561. Again, the question as stated by Chief Justice Marshall is whether this claim conforms with “the letter and spirit of the constitution.”
As I have stated, people of good faith can disagree on these points and the matter cannot be fully resolved until put before the Supreme Court. Most people anticipate that Justice Kennedy will be the swing vote on a close decision. In both Lopez and Morrison, Kennedy voted to strike down the laws. However, in his concurrence, Kennedy did note that the history and language of the Constitution “counsels great restraint before the Court determines that the Clause is insufficient to support an exercise of the national power.” Moreover, Kennedy did vote to uphold the Controlled Substances Act in Gonzalez v. Raich, 545 U.S. 1 (2005). He agreed that, absent the authority, Congress could not regulate drugs. I am frankly not convinced that the same nexus can be established here.
There is also some question over Justice Scalia’s view since he also concurred in Raich. In that decision, Scalia noted that “[u]nlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. . . . Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce.” However, he also found that “[t]his is not a power that threatens to obliterate the line between “what is truly national and what is truly local emphasis added.”
I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.
The panel gives a thoughtful and comprehensive treatment of these cases and opposing cases such as Wickard v. Filburn, 317 U.S. 111, 128 (1942).
The panel held:
In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future. The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles which to confine Congress’s enumerated power.
The three judge panel ruled that “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”
One judge, Stanley Marcus, dissented.
The attention will now turn to the Fourth Circuit where parties are awaiting a ruling on a challenge to the individual mandate.
Here is the 11th Circuit opinion.
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http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin Will Clarence Thomas and his tea party wife Virginia succeed in striking down Obama’s healthcare law?
**I would like to know if Mr. Turley or any other law authority here who has been following the legal battles to the healthcare law can assist me in a research project I am doing. I have a number of questions regarding the current status and most recent decisions, its prospects in the SCOTUS and a few “what if…..” questions.
If anyone could please help me, contact me at
pmfriedm@gmail.com
Thank you,
– Peter F.
“Also, because each province has its own system I don’t see how Canada has a “single” payer system, but like I wrote, I am not sure what people mean by that. (If memory serves, there are 10 provinces and 3 territories, so there would be as many as 13 systems.”
Canada’s healthcare system is a federal one with the individual provinces managing it with slightly differing policies for their region.
“Roles and responsibilities for Canada’s health care system are shared between the federal and provincial-territorial governments. Under the Canada Health Act (CHA), our federal health insurance legislation, criteria and conditions are specified that must be satisfied by the provincial and territorial health care insurance plans in order for them to qualify for their full share of the federal cash contribution, available under the Canada Health Transfer (CHT). Provincial and territorial governments are responsible for the management, organization and delivery of health services for their residents.””
Here’s the link to Canada’s Health Care system:
http://www.hc-sc.gc.ca/hcs-sss/medi-assur/index-eng.php
culhealth
Perhaps I was not clear, the view I expressed about the Canadian system had nothing to do with how payments are made, but rather was about how poor the care is (or was at the time of the 2005 opinion I linked). I also mentioned that my experience with Medicaid shows that health care providers have problems getting paid under that government-run system.
Also, because each province has its own system I don’t see how Canada has a “single” payer system, but like I wrote, I am not sure what people mean by that. (If memory serves, there are 10 provinces and 3 territories, so there would be as many as 13 systems.)
And, although I was using the term “serfdom” somewhat metaphorically, I will say however, that the comment on serfdom does seem to apply to the system in Quebec at the time of the 2005 decision because that decision resulted from doctors suing the Province of Quebec because they were effectively barred from working for anyone but the Province.
The assumption I have is that if the US government becomes the single payer, all medically necessary services will be paid for by the US. With the US paying for all medically necessary work, other than work for the US, what work will health care providers do? Put another way: if a health care worker does not want to be paid by the US, who would she work for?
I named two groups: elective procedures and “tourists.” I realize there is another class: arguing with the US to show that services that have been denied by the single payer are medically necessary.
I’ll ask flat out: what am I missing? If the US is the single payer (the only payer?) for whom, other than the US, would health care providers work?
mahtso,
You have a very strange image of the Canadian single payer system. Doctors are paid regularly and on time according to a fee schedule which is negotiated between them and the government at regular intervals. There are no private health care providers (there are exceptions) or for-profit hospitals per se…and no it does not lead to serfdom.What a single payer system leads to in the main is healthier citizens, a lower healthcare budget and a more civilized society.
Cooperation is sometimes even more useful than competition in managing to get things done. Look at congress.
With respect to Frankly’s comment on doctors getting paid:
My experience with Medicaid (limited to one state) is that doctors must also jump through hoops to get paid and frequently they don’t get paid at all. Q: why should I expect a system with the government as the single payer to be any different?
Since the real benefit to the mandate falls to corporations I expect a 5-4 ruling from the SCOTUS in favor of the mandate.
As for the impact of malpractice, every study I have seen indicate about 2% of the cost of treatment, including costs for ‘lawsuit preventative treatment’ is tied to law suits. Meanwhile the insurance companies are taking a larger and larger chunk out of the dollar every year. Their CEOs are being paid in the 8 or 9 figure range (hell one of them bought and runs an NHL hockey franchise based solely on his income as head of UHC).
And that cost does not reflect the increased overhead doctors having to deal with the bewildering array of rules and stipulations the insurance companies have to make payments that much more difficult to get.
As an example, my previous insurer (UHC interestingly enough) denied every claim filed for care for my college aged daughter for two years demanding proof she was a full time student. I would have to fax in copies of her school ID and grade transcript every time and then they would pay. This happened repeatedly, even in the same semester. The doctors had to wait several months to get their money. She tore up a knee playing hockey so there were several doctors involved & they denied each doctor and I had to provide the documents for each and every bill.
I really don’t know what the term “single payer” means, but this 2005 Canadian SC opinion shows that each province had its own system, so I assume Canada did not have a “single” payer system.
http://scc.lexum.org/en/2005/2005scc35/2005scc35.html
Bearing in mind that this is an old opinion and things may have changed, the opinion shows that system in Quebec was so poor that people were dying from lack of treatment while on waiting lists and that waiting lists are “a more or less implicit form of rationing …. Waiting lists are therefore real and intentional.” See paragraph 39.
Paragraphs 112, 113, and 114 are also important (to me) in making a determination as to the quality of care in Quebec (at the time of the opinion.)
With respect to a true single payer system:
I assume that all medically necessary services would be covered and paid for by the government, leaving only electives and treatment to “tourists.” I can’t see how that would pay enough to allow many health care providers to stay independent of the government.
Wouldn’t that mean that virtually all health care providers would be working for the government? Would the government effectively own the hospitals? Would this become a form of serfdom?
Judge Marcus’ well written and strongly worded dissent – pg. 208 (PDF) seems to be the template for the push back against the conservative majorities ruling.
.
He calls out the majorities Judicial Activism.
“Quite simply, the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly. This approach ignores the wide regulatory latitude afforded to Congress, under its Commerce Clause power, to address what in its view are substantial problems, and it misapprehends the role of a reviewing court. As nonelected judicial officers, we are not afforded the opportunity to rewrite statutes we don’t like.”
—
He knocks down their call for Federal deference to the States.
“It would surely come as a great shock to Congress, or, for that matter, to the 47.5 million people covered by Medicare, the 44.8 million people covered by Medicaid, and the overwhelming number of employers, health insurers, and health care providers regulated by ERISA, COBRA, and HIPAA, to learn that, because the health care industry also ‘falls within the sphere of traditional state regulation,’ Congress was somehow skating on thin constitutional ice when it enacted these laws.”
—
He also disputes the majorities claim that the Uniqueness of the Legislation is reason to declare the mandate unconstitutional.
“In the course of its opinion, the majority also attaches great significance to the unprecedented nature of the legislation before us. It is surely true that, as the district court concluded, the individual mandate is a novel exercise of Congress’ Commerce Clause power. But the mere fact of its novelty does not yield its unconstitutionality. […]
Every new proposal is in some way unprecedented before it is tried. And to draw the line against any new congressional enactment simply because of its novelty ignores the lessons found in the Supreme Court’s Commerce Clause cases.” h/t Steve Benen
“Since the New Deal — and especially since the Great Society — America has chosen an accelerating transfer of wealth from young to old. Some of this was necessary and desirable. Many seniors face a period of economic struggle toward the end of life, which entitlements have effectively, compassionately eased.
But longer lives have extended this period of dependence, while health-care inflation has dramatically increased the cost of the Medicare entitlement. According to Andrew Biggs of the American Enterprise Institute, someone who retires today will pay for less than half of the Medicare benefits he or she is likely to receive over a lifetime — a subsidy given to even the wealthiest retirees. The balance of these costs is imposed on workers or added in debt.
The problem is that there are two periods of economic dependence in life — late and early. A healthy society not only cares for its elderly but also cultivates its children. Biggs estimates that the federal government now spends $6 on seniors for every $1 it spends on children, even though the poverty rate of children is much higher.
From a historical perch a century hence, this will seem an odd, sad decision. A country that increases taxes on current workers and encumbers children with debt to maintain unreformed health entitlements is looking backward. Unless this course shifts, America will have a continually diminished capacity to invest in children and young families. It is the evidence of a generation that prefers its own future comfort to the welfare and ambitions of generations to follow. And this attitude is the mark of a tired nation.”
Michael Gerson
Noah V — “Is it just a federal vs state issue? ”
On the nosey.
Noah V
go back and read Bob Esq
While a citizen can be forced to purchase auto insurance; that is only because driving an automobile is a privilege which the citizen CHOOSES to engage in. The mandate for auto insurance is PREDICATED ON the choice of the citizen.