11th Circuit strikes down Obamacare mandate
Posted by William A. Jacobson Friday, August 12, 2011 at 1:18pm
This is the big case involving 26 states. In January, Judge Roger Vinson struck the entire law finding that the mandate could not be severed from the rest of the law.
The 11th Circuit ruled that the mandate was unconstitutional, but unlike Judge Vinson, did not throw out the entire law, finging that the mandate could be severed. The opinion is here.
Here is the conclusion summarizing the various aspects of the ruling:
We first conclude that the Act’s Medicaid expansion is constitutional. Existing Supreme Court precedent does not establish that Congress’s inducements are unconstitutionally coercive, especially when the federal government will bear nearly all the costs of the program’s amplified enrollments.
Next, the 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. [fn omitted]
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 operaive after the mandate’s excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met.
Some thoughts in no particular order:
* Once again a court rejects the belated argument by the administration that the mandate is an exercise of taxing powers. I believe that every court that has considered the issue has ruled against Obama.
* The main opinion is 204 pages, much of which is devoted to explaining how the law works. When Nancy Pelosi said we had to pass it to find out what was in it, she was right. And we need hundreds of pages of judicial decision to tell us.
* The mandate was rejected precisely because it requires people to enter a market rather than regulating a market. I’ll have to spend some more time to see if the court adopted the activity/no activity distinction, but this language certain sounds familiar to people who have been reading Legal Insurrection:
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