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.
Source: Yahoo
Geeba,
show us the figures that prove tort claims are the cause of high insurance costs and while you are at, explain how that relates to insurance companies cancelling people for little or no reason, except to avoid payment of bills.
When the Health Care law was passed, I stated that while I would have preferred a Medicare for all approach, that I thought the mandate was legal. I agree with Mike A. that it was probably instituted as a compromise, but when the court says that Congress has Plenary power when it comes to the commerce clause, how can this Appellate court strike it down? Think Progress has a good discussion concerning this case and they cite the Gibbons v. Ogden case where the Supreme Court said Congress had a plenary power to regulate commerce. Is the Gibbons case still good law? If it is, how can this act be ruled unconstitutional? http://www.law.cornell.edu/supct/html/historics/USSC_CR_0022_0001_ZO.html and here is the link to the Think Progress article: http://thinkprogress.org/justice/2011/08/12/295196/the-eleventh-circuits-affordable-care-act-decision-cannot-be-squared-with-the-constitution/
Geeba Geeba:
To my knowledge, the Texas style “solution” hasn’t solved anything. Secondly, imposing damages caps essentially shifts costs to people who have been injured, often quite severely. I do not do personal injury law, but I’ve tried many cases and both my experience and empirical studies establish that juries are conservative folks who are not prepared to give away the farm. Finally, instructing juries that they may not award damages beyond an arbitrary amount, regardless of the circumstances, is an improper and dangerous intrusion on the function of a jury in the administration of justice.
kderosa:
People who have insurance subsidize those who do not, which was the logic behind the mandatory purchase requirement in the health care law. Moreover, Medicare was primarily a response to the fact that insurance companies are unwilling to insure the elderly. A program of universal coverage in some form makes sense because it expands the pool. But unless your preference is that private charity should be charged with caring for the uninsured sick, it will be necessary to have a tax component in the mix.
Folks you are not going to like this. I think a lot of excessive costs are directly or indirectly related to … lawyers. I know we need this essential service of the law. Alas, laws and lawyers (tort) is a self feeding piranha pile in perpetuity. By far not the only problem but it needs to be fixed. Perhaps the Texas style solution?
@Mike Appleton,
“If private health insurance were affordable, we wouldn’t even be having this conversation. I know the monthly impact on my budget, and my income exceeds median family income in this country.”
That’s the problem. Being above the median means typically means that you either pay full fare or are paying full fare and also subsidizing those below the median. Government can’t solve this problem. If anything, government has caused this problem by distorting the market through medicare and medicaid. If someone above the median can’t afford health insurance, then there are more serious problems that being put on the government roles won’t be capable of solving. The problem will merely be kicked don’t the road until it becomes a real mess for future generations.
Bob, Esq.:
You should feel giddy since the opinion uses the phrase “mere fact of an individual’s existence.” They didn’t even footnote it to your blog, however. I agree that the law is obnoxious for a lot of reasons, but I don’t blame liberalism as much as I blame intellectual dishonesty in the course of framing a compromise.
Mike Appleton,
Here’s a thought.
Can you imagine if SCOTUS went insane and cited Kelo as their reason for upholding the individual mandate and explaining why they’re disposing of federalism entirely while granting congress unlimited power?
Mike A.,
Don’t hate me; see it more as a victory for predicate logic. Coming up with the same analysis as the appellate court, sans submission of a brief, sort of feels like hearing your name on the radio– giddy.
Here’s what I wrote last February:
Bob,Esq. 1, February 3, 2011 at 12:12 pm
On the most basic level…
Health care reform can only be achieved via reform of medicare and funding through the general tax rolls. Attempting to force the issue via ‘creative constitutional thinking,’ as democrats have, leads to disaster.
With that said, I don’t see where congress was empowered to force citizens to engage in a certain form of commerce via the commerce clause simply by virtue of the existence of the citizen.
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.
A health insurance mandate is PREDICATED ON the mere existence of a living citizen. The mandate REMOVES ALL CHOICE from the individual per whether to engage in a particular form of commerce. This is yet another example of overreaching legislation treating the citizen of the United States as property of the United States.
If the mere existence of a living citizen is enough to engage the commerce power, then there is absolutely no line between the individual and the state; voiding the social compact, as restated in the Declaration, as illusory and reversing EVERY SINGLE PRINCIPLE OF OUR REPUBLIC through ignoring the most fundamental order of operations – Rights confer power; not vice versa.
http://jonathanturley.org/2011/02/03/health-care-and-federalism-a-response-to-charles-fried/#comment-199232
And the court said:
“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.”
And Mike, you have to admit this law was obnoxious from the get go. I have no problem with universal health care; hell I’m all in favor of it. But this law is a perfect example of the evils of liberalism; i.e. “so long as our intentions are good, we can rule you however we want.” No better than the social conservative.
“However, I suspect this will increase pressure to push single payer.”
🙂
NOW you’re talkin’ !
Bob, Esq.:
I hate it when you’re right. I expect the Supreme Court to agree with the 11th, although I haven’t read the opinion yet. However, I suspect this will increase pressure to push single payer.
kderosa:
If private health insurance were affordable, we wouldn’t even be having this conversation. I know the monthly impact on my budget, and my income exceeds median family income in this country.
The need for an individual mandate in its purest sense has always been a point I agree with, that it funnels an outrageous amount of public and private money through insurance companies has always been my objection. Legal money laundering with the middle-man taking a 15% vig is not my idea of progress.
Medicare for all (aka single payer) should save the government 15% of whatever they were going to pay in insurance policy subsidies right off the top, I’d think that would make our conservative friends on the Hill happy.
We need health universal care- we don’t need insurance companies to have it.
Medicare for all is the right idea. Let’s eliminate the rent-seeking insurance companies from the equation who bring no value to healthcare anyway.
Better Noire:
“If the health care plan voted in recently is doomed, can we revisit the idea of allowing Americans under 65 to buy in to Medicare?”
Why not just buy private health insurance?
Citizen of; not property of.
“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.”
Hey…
that sounds awfully familiar. Who was it that made the EXACT same argument here…?
Hmmm…. I wonder…
So, we now have two circuits in disagreement (6th vs 11th), which gives the Supremes another jurisdictional reason to grant certiorari.
Love your solution, Bette Noir
If the health care plan voted in recently is doomed, can we revisit the idea of allowing Americans under 65 to buy in to Medicare?
http://tpmdc.talkingpointsmemo.com/2011/08/circuit-court-rules-health-care-laws-individual-mandate-unconstitutional.php?ref=fpblg
http://www.politico.com/news/stories/0811/61224.html Michele Bachmann praised the ruling and said the 11th circuit heeded her call.
Needless to say I agree with the decision.
Checking the predictions markets, it looks like the chance of the Supreme Court finding the individual mandate unconstitutional prior to December 2013 remains under 50%. I think that’s low.