You’ve seen the headlines: The U.S. Court of Appeals for the Eleventh Circuit has upheld a lower-court ruling that Obamacare’s individual mandate — which requires all U.S. residents to purchase health insurance — is unconstitutional. The case in question, Florida v. Health and Human Services, is the most important of all the Obamacare constitutional challenges thus far, because the plaintiffs include the governors and attorneys general from 26 states.
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In January, when lower-court judge Roger Vinson overturned the entirety of Obamacare in the same case, I wrote that Vinson’s ruling “could go down as an important landmark in the history of American liberty.” The new ruling is even more significant. The 207-page majority opinion of the Eleventh Circuit, penned by appointees of Bill Clinton and George H. W. Bush, is the most rigorous and complete repudiation of the mandate ever written. It stands in stark contrast to the blitheness of the 26-page lead opinion from the Sixth Circuit decision in June upholding the mandate. The Eleventh Circuit judges persuasively make the case that “the government’s position amounts to an argument that the mere fact of an individual’s existence [means that] Congress may regulate them at every point of their life.”
The Eleventh’s impressive opinion makes certain that the Supreme Court will take up the Obamacare challenges. But, most importantly, Judges Joel Dubina and Frank Hull have marshaled facts and arguments in their ruling that will be impossible for the High Court’s swing voters to ignore.
UPHOLDING THE REST OF OBAMACARE Before we get to that, it is worth pointing out that the Eleventh reversed Vinson’s overturning of the law in its entirety. This is a regrettable and important defeat that came about in part because the plaintiffs’ advocates, Paul Clement and Michael Carvin, made a number of unforced errors in their defense of Vinson’s opinion.
The question comes down to the principle of severability. Can the individual mandate be overturned, but severed from the rest of the law, leaving the rest intact? Or is the individual mandate so essential to the entire scheme that if it is overturned, the law must be thrown out wholesale?
During oral argument, Judge Hull asked Clement and Carvin about this: Did the plaintiffs truly believe that every provision contained in the law would be adversely affected if the mandate were overturned? For example, was the individual mandate necessary for the takeover of the student-loan program contained in the Patient Protection and Affordable Care Act? Clement and Carvin argued, without credibility, that it was. The far stronger answer would have been Judge Vinson’s: that “although many of the remaining provisions . . . can most likely function independently of the individual mandate, there is nothing to indicate that they can do so in the manner intended by Congress,” because that would require judges to “try to infer Congress’s intent.”
Dubina and Hull point out in their ruling that “in the overwhelming majority of cases, the Supreme Court has opted to sever the constitutionally defective provision from the remainder of the statute.” Indeed, they note that in United States v. Morrison, a landmark Commerce Clause case from 2000, the Supreme Court invalidated a portion of the Violence Against Women Act, “even though the text of the two bills did not contain a severability clause” — that is, a clause specifying that offending provisions could be surgically removed.
Dubina and Hull are right that the remainder of Obamacare is “fully operative as a law” without the mandate; i.e., that the law can still function from a legal standpoint. But the Supreme Court has said that a provision is not severable if, without it, “it is evident that the Legislature would not have enacted those provisions which are within its power.”
The evidence that the individual mandate was the foundation of Obamacare is irrefutable. Indeed, the law’s advocates said so from the outset. Obamacare’s subsidized exchanges were designed to mitigate the mandate’s imposition of heavy insurance costs on lower-income Americans. The law’s insurance regulations will drive up the costs, and thereby decrease the incentives, for healthier individuals to buy insurance; they are thus viable only if accompanied by a mandate.
Actually this case is the flip side of Wickard, but the logic is the same. In the one case there is too much wheat in interstate and in Obama care there is too little health care. In either case the remedy is to force people into economic decisions they would not other wise make because of the impact these private decisions have on interstate commerce. In either case neither of these private decision directly impact interstate commerce. I don't really find the dintinctions with Wickard compelling. If Wickard is good law then so is Obamacare. And if Obamacare is bad law so is Wickard.
The point is that this case shows that the rationale in Wickard to be fatally flawed and that if Obamacare is found unconstitutional logically so should Wickard.
Wickard was an unconstitutional expansion of the Commerce Clause through the power of judicial interpretation. If Congress had sought to do that directly it would have required a Constitutional Amendment. It is time for Wickard to be overruled or repealed by Constitutional Amendment.
AMEN!
Wickard is an abomination on this nation. If this horrible decision were overthrown the impact would ripple through Washington like a tidal wave.
Marshall in Gibbons v. Ogden said the power to regulate commerce among the states and foreign nations was identical, and the power was to prescribe rules that determine what items of import received restrictive or prohibitory duties.
A preivous article in NR pointed out that the DOJ can stonewall a SCOTUS decision until so much of Obamacare has been realized it would be impossible to dismantle it because so many people will be dependent upon it. Once embedded into a large scale "entitlement" its a done deal that cannot be turned off. Military expenditures will go the wayside to make room for National healthcare. That is what the administration is "banking" upon. The Dragon's scales is already hardening enough to make slaying it a tough proposition.
Ultimately, I think it bodes ill that there is no effective check on the Supreme Court's ability to alter the Constitution through interpretation which, if the Congress did it, would require an Amendment with all that requires.
This is an area where the founders slipped up. I would like to see an Amendment to the effect that a Supreme Court interpretation that expands the power of the Federal Government be treated as an Amendment and sent to the States for ratification.
Six separate screens of print -- a VERY welcome sight on such a vital issue to our liberty. I'll have to tackle it piecemeal throughout the day. I truly appreciate the in-depth analysis, as media outlets normally minimize and trivialize the juridical espousal of our laws.
At this early stage (page 3), the most crucial substantive element is this:
The opinion -- inarguably the most important intermediate federal appellate court ruling in decades -- was "penned by appointees of Bill Clinton and George H. W. Bush".
Neither of those men -- especially not the latter -- was known for appointing consistently the type of jurists to the federal bench who could look beyond the practical outcomes of their decisions to adhere to the letter of the laws upon which they were called to review.
Clinton's appointees, of course, have been all over the map -- on the left side of the center line of reasonable, with few exceptions.
The fact of who appointed them serves to highlight just how obvious it is to an honest juridical mind that, indeed, Congress and the President intend to regulate upon us "at every point" of our existence.
It should be noted that, in the past few decades, the 6th Circuit has become one of the most liberal, in significant contrast to many of its trial-level judges they review.
Good comment. I find it very sad, but realistic, to explain a judge's decision by his politics or who appointed him or her to the bench. If law is determined by one's politics and who appointed him or her what does that do the the concept of rule by law?
If law is not determined objectively regardless of one's political party why should the citizen have any respect for it? Why is it legitimate, except by force?
My point was that the majority of appointees by the two presidents in question -- #41 and #42 -- issued and continue to issue rulings based more on political outcome than on the state of the law as they find it.
And I found it refreshing, to say the least, that appointees of those two men would rule to strike down #41's pet project, and the entire left's -- and current chief executive's -- signature legislative project for the past 40 years.
The appointees of those two presidents made politics relevant. I'm simply observing. I think that's what you were commenting on -- the sadness of the reality of that observation. I agree.
Between the lines, that was the motivation of my comment.
"My point was that the majority of appointees by the two presidents in question -- #41 and #42 -- issued and continue to issue rulings based more on political outcome than on the state of the law as they find it."
I totally agree. This is sad and makes a mockery of the law. In theory the politics of the judge should not influence the decisions of the judge, but if they do then politics all all important.
And the Republicans should never agree to another Democratic appointee.
Love this exposition, the knowledge is above my pay scale. For practical purposes, it seems that Obamacare must lead to price fixing by the government bureaucracy (How much are you charging to press a pair of pants, Mr. Maged?) And I have always proposed to my students that IF the government can require you to purchase something, WHY did they need to have war bond drives during World Wars One and Two? Couldn't they just require workers to automatically contribute money to the war drives?
If only the same "overly inclusive" observation could be applied to other entitlements, we might not be in the pickle we are in right now.
What really jumps out in this cogent drop-kicking of ObamaCare is you can almost read throughout it the remedy that's available to those who think like Obama, Pelosi and Reid. Just have the government provide the health care, and include that coverage in part of much larger taxes. Oh, that's right, you can't, because that idea is unpopular, there's no political will to do it, and you can't convince the majority of the country that it's a good idea. Or pass a Constitutional amendment pointing out the unique nature of health care and allowing for the mandate to have coverage. Oh, that's right, you can't, because that idea is unpopular, there's no political will to do it, and you can't convince the majority of the country it's a good idea. This court ruling not only exposes ObamaCare; it exposes how "progressives" in general use legislation from the bench as a backstop or for their overreaches, because they can never convince the majority to support their bad ideas.
I highly recommend that people read the 11th Circuit opinion. If you are not able to read it in its entirety (it is 304 pages long, including the dissent), it is worth your while to skim through it, at least the first 200 pages which comprise the majority opinion. You will learn a lot about Commerce Clause jurisprudence, the history of federal government involvement in healthcare and, of course, the ill-conceived abomination of self-aggrandizing socialist legislation popularly known as "Obamacare."
The majority opinion is superbly written, and I'm not stating that because I agree with it (although I do). It asserts many well-reasoned, logically sound and legally solid criticisms of the mandate, while offering some new critiques and reasoning I had not pondered before. And, in a subtle but unmistakable nudge at Justice Anthony Kennedy, the opinion liberally cites from his past opinions on Commerce Clause cases, as if to remind him of where he has stood in the past on these issues.
THERE IS NO COMMERCE CLAUSE TO THE CONSTITUTION !!!!!!
Just as there is NO general welfare clause to the Constitution.
The former is simply one of the 18 delegated powers of Congress. The latter is a general direction the powers of Congress should be directed towards.
There is no Army clause of the constitution, no postal road clause, etc.
Read it for yourself.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
The problem with the decisions both for and against health care reform is the open-ended nature of the Supreme Court's vast expansion of the interstate commerce clause since 1937. This is evidenced by the circuit split. As much as I agree with the author about the superiority of the 11th Circuit opinion, the 6th Circuit opinion can be still be defended under modern commerce clause jurisprudence.
The time has come for the people rather than the Supreme Court to decide the constitutional status not only of Obamacare, but of the innumerable other ways in which the federal government has increased its power beyond the original scope of the Constitution. Do we accept the New Deal reinterpretation of the interstate commerce clause, or do we restore the interstate commerce clause to its original much more limited meaning? This critical issue should be decided in the manner prescribed by the Constitution itself, which is amendment, not the vote of a few unelected, unaccountable, life-tenured judges. See External Link.
If we end up with a national health care plan it will be because of the foolishness of striking down the mandate. We can't go on with our health care status quo and a mandate may be our only chance to maintain a private / public balance in our health care system.
It is as if NR readers actually want national health care, and would like to ruin the Obama plan to make way for it.
Mandates work in many countries. Many enforce theirs by making people pay up heavy penalties if they try to wait until they get sick, and then buy insurance after the fact . Countries that work with insurance mandates often have more competition, service, little or no rationing compared to their absolute single-payer counterparts.
There ir a conservative case for universal health care. I would rather have it in the form of an insurance mandate type than single-payer.
I always thought "Progressives" were the people who would force a government plan , complete with rationing , on us. Little did I realize that NR's so-called "conservatives" would advocate destruction of a plan that, frankly, seems quite well proven and sensible to me.
On this issue, Obama got it right. I hope the health care reform survives challenges, gets amended with better mandate enforcement and stronger penalties.
Our tax money and premiums already pay for the uninsured in ERs and safety net bailouts. So much for the myth of "liberty" from coerced health care payments.
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