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11th Circuit Strikes Down Individual Mandate

Ruling on the challenge brought by 26 states, the Eleventh Circuit has struck down the individual mandate as exceeding Congress’ enumerated powers under the Commerce Clause (see full 304-page opinion). They ruled that it was severable from the rest of the PPACA, however:

[T]he individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. 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. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision. The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce.

The individual mandate, however, can be severed from the remainder of the Act’s myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act’s other provisions remain legally operative after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met. [Emphasis added.]

The last part concerns me, since I have no doubt that the bill’s proponents would be just fine with the PPACA without the mandate. The bill’s defenders in these lawsuits have been at pains to stress its centrality to the overall regulatory scheme (that is, in large part, why Judge Vinson struck down the entire act below, given the lack of a severability clause).

But if the mandate is truly necessary for the scheme to work (and that much at least is probably true, given the perverse incentives to wait until one needs it to buy insurance without it), then the all-but-inevitable result of stripping it out but leaving the rest of the law in place will be to render private insurance prohibitively unprofitable. And then the real goal will be reached: Single payer (federal government) health care will become a reality by default. The destructive consequences of striking only the mandate are thus a feature not a bug to the government health care crowd.

This has been almost as obvious as the mandate’s patent unconstitutionality since the day the bill was drafted. As such, some will cheer this result (when/if it obtains; doubtless they’re busy today decrying the outrageous “judicial activism” perpetrated by the Clinton appointee who ruled against the administration) because they are ideologically committed to government-provided health care regardless of whether it would be good health care. But everyone who wants a high quality system should be concerned that this result–coming as it does in the biggest, highest profile case in the pipeline–will hold sway with the Supremes.

The proper result would have been to uphold Judge Vinson’s ruling in its entirety. But, still, another ruling on the key issue that requiring one to enter into a contract with a private company as a condition of citizenship exceeds Congress’ power is quite welcome.

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About Dodd
Dodd, who used to run a blog named ipse dixit, is an attorney, a veteran of the United States Navy, and a fairly good poker player. He can kill a mime using only his thumb. He joined the staff at OTB in May 2007. Follow Dodd on Twitter.

Comments

  1. hey norm says:

    Actually, pulling out the mandate would require going to single-payer system…and that’s just a Democratic House away.
    In other news:
    http://tpmdc.talkingpointsmemo.com/2011/08/congressional-democrats-on-the-comeback-in-the-polls.php?ref=fpb
    (actually that poll is probably about as worthwhile as a rasmussen poll…but wtf.)

    Like or Dislike: Thumb up 0 Thumb down 1

  2. Tsar Nicholas says:

    Not surprising. Dubina is a very good judge and Frank Hull is one of the rare Clinton nominees who’s not a barking liberal Moonbat.

    Obviously the SCOTUS will have the final say. We’ll see that day what Anthony Kennedy had for breakfast. Should be interesting.

    Like or Dislike: Thumb up 1 Thumb down 0

  3. Andyman says:

    If you have a problem with “requiring one to enter into a contract with a private company as a condition of citizenship”, you should have supported a public option. Now eat your peas.

    Like or Dislike: Thumb up 2 Thumb down 3

  4. sam says:

    “This has been almost as obvious as the mandate’s patent unconstitutionality since the day the bill was drafted.”

    I dunno. Can you say, “necessary and proper”?

    Like or Dislike: Thumb up 1 Thumb down 2

  5. Dave Schuler says:

    @hey norm:

    Actually, pulling out the mandate would require going to single-payer system…and that’s just a Democratic House away.

    I have a vague recollection of the PPACA being enacted into law by a Democratic House. Why would this time be any different?

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  6. hey norm says:

    There is nothing unconstitutional about Congress regulating an industry that comprises 17% of the U.S. economy.
    You can not like it if you want. But not liking it does not make it unconstitutional.

    Like or Dislike: Thumb up 3 Thumb down 4

  7. An Interested Party says:

    …because they are ideologically committed to government-provided health care regardless of whether it would be good health care.

    As opposed to so many people who are ideologically committed to private sector-provided health care regardless of whether that is good health care…

    Like or Dislike: Thumb up 3 Thumb down 4

  8. hey norm says:

    @ Dave Schuler…
    Um…because the Supremes will have ruled the Individual Mandate unconstitutional?
    Remember…it was passed by a Democratic House but is actually a Republican policy that got no Republican votes. Assuming that Scalia reverses himself, on every Commerce Clause case he has ruled on, and Kennedy buys it and the Mandate is ruled unconstitutional but the rest can stand — then it has to be paid for somehow. If no individual mandate then how? The next option is the Public Option.

    Like or Dislike: Thumb up 1 Thumb down 3

  9. lunaticllama says:

    How is a law “patently unconstitutional” when the premise on which it is unconstitutional finds no basis in any prior case law?

    There is no need for a “limiting principle” for any legislation that falls under an enumerated legislative power, including powers inferred under the Necessary and Proper Clause. This applies equally to the activity/inactivity distinction, which has no precedent in the Federal Reporters.

    Moreover, you appear unfamiliar with how the severability doctrine has been applied since its creation in Prima.

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  10. WR says:

    @hey norm: Of course not liking something makes it unconstitutional. What’s wrong — don’t you listen to Michelle Bachmann?

    Like or Dislike: Thumb up 2 Thumb down 3

  11. Dave Schuler says:

    @hey norm:

    You’re missing the point. The PPACA was passed without Republican votes. Whether it was a “Republican bill” or not is irrelevant. It was written by Democrats and enacted into law by Democrats. I think you should consider that the Democratic Congress couldn’t get enough Democratic votes to enact single payer.

    So, I repeat, what’s changed now? The constitutionality of the individual mandate is irrelevant to that question.

    Just for the record I was in favor of a single payer system for more than 30 years. Now I’m beginning to think that a single payer system has serious time inconsistency issues for the U. S. i.e. if the Congress won’t constrain physician billing rates now why will they do so a year from now?

    Like or Dislike: Thumb up 1 Thumb down 1

  12. Console says:

    So you worry that the bill is unworkable without the mandate… yet at the same time you hold the belief that the mandate isn’t necessary and proper to the bill. Where’s the part where I’m supposed to see the people on the unconstiutional side as consistent and logical? Shouting the word “unprecedented” isn’t an argument.

    Like or Dislike: Thumb up 0 Thumb down 2

  13. Dodd says:

    @Console:

    Constitutionally, your comment is gobblydegook. The Necessary & Proper Clause is not an independent source of authority for Congress to do whatever it likes. It is an authorization to undertake those acts ‘necessary and proper’ to effect its Constitutional powers. See, eg., McCulloch v. Maryland:

    Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

    I don’t “worry” that the PPACA is “unworkable” without the mandate. Nor do I argue it isn’t essential, necessary, proper, or any other adjective you choose to apply to the overall bill. It’s unconstitutional, therefore it doesn’t matter how essential it is the the PPACA’s scheme.

    Like or Dislike: Thumb up 3 Thumb down 0

  14. Jay Tea says:

    @Dodd: Very well put. I was about to put it in layman’s terms — the “necessary and proper” clause gives no power in and of itself; it needs a second, legitimate power to work with.

    The key clause here is the Interstate Commerce clause. And as noted in many places, if it applies here, then it literally can control every single aspect of every American’s life. I even found a way that the government can control masturbation through that clause, if you buy into the arguments of the ObamaCare backers.

    J.

    Like or Dislike: Thumb up 4 Thumb down 0

  15. Console says:

    @Dodd:

    The end is the regulation of healthcare which is clearly constitutional. The means is the mandate. Ergo the whole necessary and proper thing.

    I mean jesus christ, you live in a country where if the american government totally socialized healthcare, that woud be constitutinal, but a mandate is out of the question because that means Congress can control your life…

    You’ll never convince me to take any of this more seriously than the level of a temper tantrum.

    Like or Dislike: Thumb up 2 Thumb down 6

  16. Jay Tea says:

    @Console: The end is the regulation of healthcare which is clearly constitutional. The end is the regulation of healthcare which is clearly constitutional. The means is the mandate. Ergo the whole necessary and proper thing.

    Pray, then, please cite the specific part of the Constitution that covers it.

    What an astonishing chain of presumptions and unproven points.

    1) Congress has the ability to regulate the health care industry.

    2) Forcing every single American to buy a specific service from private companies is just a form of “regulating” the health care industry — just like industry X, where in the name of “regulation” we can make individuals become customers simply because they are citizens or legal residents.

    3) The above step is “necessary” to properly regulate the industry and make certain it does not break the law or violate individuals’ rights.

    4) Forcing individuals to buy a service under penalty of law is considered “proper.”

    Console, I reject each and every single aspect of your assertions above.

    J.

    Like or Dislike: Thumb up 3 Thumb down 0

  17. Dodd says:

    @Console: You’ll never convince me to take any of this more seriously than the level of a temper tantrum.

    Given the bilge that preceded this, what possible reason would I ever have to even try?

    Like or Dislike: Thumb up 2 Thumb down 0

  18. Loviatar says:

    @Dodd:

    In response to your post, in particular the highlighted portion, I’ve linked Judge Stanley Marcus’ dissent (PDF). h/t Steve Benen
    .

    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.”

    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.”

    Uniqueness of the Legislation : “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.”

    .

    @Console:

    There is no way to have a reasonable discussion with Dodd or the current batch of Republicans. To paraphrase John Cole at Balloon Juice, its like trying to decide what to have for dinner, you suggest Italian or Chinese food, your companion suggests old tires and scrap steel. I’ve given up, I drop in occasionally to point out their stupidity but I don’t waste any time arguing with those who are actively trying to destroy the country (Federal Default, Defict Reduction).

    Like or Dislike: Thumb up 1 Thumb down 2

  19. Jay Tea says:

    @Jay Tea: Actually, I kinda overran my headlights there. I do accept, generally, the first assumption, that the federal government can regulate the health care industry. But going from that to ObamaCare is a Grand-Canyon-sized leap.

    J.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. sam says:

    @Jay Tea:

    Console, I reject each and every single aspect of your assertions above.

    Perhaps you do. But that is the argument that will stand or fall in the Court.

    I do accept, generally, the first assumption, that the federal government can regulate the health care industry.

    It is well that you do, since the US government funds about 50% of the US health system.

    But the end, we’re brought up against McCulloch:

    Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are Constitutional.

    The majority in the 11th Circuit argue thusly:

    We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.

    It seems to me that that is, as is so much of Judge Vinson’s opinion, an exercise in judicial philosophizing not really appropriate to a lesser court in our system. I argued in another thread that the government’s power to mandate purchase of a product was exercised in the early years of our republic, both in a limited way (Sailor’s Relief Act) and in a general way (Militia Act of 1792). I grant that these mandates were not advanced under color of the commerce clause (at least the militia requirements — imposed, btw, on you simply as a function of you living and breathing and being a male citizen, etc.). But the important thing to keep in mind is that these mandates were imposed “consistent with the letter and spirit of the Constitution.” Governmentally imposed mandates to purchase products are not foreign to the Constitution.

    Even Dodd argues that the mandate is (probably) necessary to the regulatory scheme advanced in the ACA. The question then will be, is it proper? History tells us that the government has deemed it proper to impose mandates to purchase in the past to secure a legitimate end. The argument then will be, in furtherance of a legitimate regulatory end, the regulation of the health care industry, is the individual mandate a proper means to that legitimate end? It seems to me that the 11th Circuit did not resolve that question at all. Finding no evidence is not the same as there being no evidence to be found.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Dodd says:

    @Loviatar:

    Yes, because the first thing I think when someone comes over to my place to screech about my “stupidity” and accuse me of wanting to “destroy the country” simply because I disagree with him is that he longs for a “reasonable discussion.”

    Like or Dislike: Thumb up 0 Thumb down 1

  22. john personna says:

    But if the mandate is truly necessary for the scheme to work (and that much at least is probably true, given the perverse incentives to wait until one needs it to buy insurance without it), then the all-but-inevitable result of stripping it out but leaving the rest of the law in place will be to render private insurance prohibitively unprofitable. And then the real goal will be reached: Single payer (federal government) health care will become a reality by default. The destructive consequences of striking only the mandate are thus a feature not a bug to the government health care crowd.

    I don’t think anyone designed that “feature.” They just did what had been floated many times (and tried in some states), they went to universal health care by way of mandatory insurance. It was a more market oriented solution than many of the other “universal” choices.

    And I certainly don’t think, should the decision stand, that this will roll over to a more state oriented solution anytime soon. More likely we’ll have another decade or so of breakage, with distorted and inefficient market and government offerings overlaying each other.

    I mean, this is the system that gives us employer health care, but we can choose COBRA, and after that CAL-COBRA. Neither fish nor fowl. Neither market nor government provided.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. Loviatar says:

    @Dodd:

    John Rodgers wrote this almost 7 years ago and its even more relevant today.

    I Miss Republicans
    .

    I try to read it every few months to remind me how much the Republican party has declined in the past 40 years – the decline which started with Reagan. If you were anything like the Republicans described in the post, I could respect you and we could have a discussion on the issues, but you’re not.

    You are the new Republican 2.0; the proto-fascist/secessionist who believes facts, ethics and morals are all negotiable items.

    — Your 21st century mantra: Damm society and my fellow citizen, I’ve got mine.

    .

    Oh yeah about that comes over to my place comment, I think John might have something to say about that. You’re nothing but an employee son, so don’t get yourself downsized by taking on too many airs.

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  24. Loviatar says:

    @Dodd:

    Oh by the way, I noticed that while you addressed my criticism, you didn’t address Judge Marcus’ dissent.

    Was the majority acting as a superlegislature and practicing Judicial Activism when they struck down the Individual Mandate?

    Why is the majority telling Congress to treat PPACA differently than what Congress has done in the past with Medicare, Medicaid, ERISA, COBRA, and HIPAA? Congress typically provides as part of regulations the ability to set fees, fines or other methods to generate revenue to pay for the regulated activity. Why should Congress treat this act differently and defer to the States on the method of generating revenue?

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  25. An Interested Party says:

    Why is the majority telling Congress to treat PPACA differently than what Congress has done in the past with Medicare, Medicaid, ERISA, COBRA, and HIPAA?

    I wouldn’t be surprised if some people thought those other programs are also unconstitutional…

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