The Eleventh Circuit Takes Aim at Obamacare
Judges Joel Dubina and Frank Hull deliver a rigorous repudiation of the mandate.


Avik Roy

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.


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.

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.