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.
