On this point, the Eleventh flinched. It refused to confront the evidence of the mandate’s centrality to the broader law, stating that “we are not persuaded that it is evident (as opposed to possible or reasonable) that Congress would not have enacted [mandate-driven insurance reforms] in the absence of the individual mandate.”
Its decision makes it highly likely that the Supreme Court will also stick only to considering the constitutionality of the individual mandate, while leaving the rest of the law intact. It is here that Judges Dubina and Hull did their finest work.
A SEVEN-PART OPINION
The Eleventh’s opinion is divided into seven parts: (1) an exploration of whether the plaintiffs had the standing to sue; (2) an excellent summary of the law’s contents; (3) support for the constitutionality of the law’s massive expansion of Medicaid; (4) a review of the Supreme Court’s inconsistent history with regard to the Commerce Clause; (5) a discussion of why the individual mandate goes beyond Congress’s powers under the Commerce Clause; (6) an explanation of why the mandate is not a tax, and therefore cannot be justified under Congress’s taxation power; and (7) the opinion about the mandate’s severability from the rest of the law, which I discussed above.
The rest of this article will focus on parts 4 and 5 of the opinion — Commerce Clause jurisprudence and the constitutionality of the mandate — as the rest of the ruling is fairly straightforward.
COMMERCE CLAUSE JURISPRUDENCE
Section 8 of Article I of the Constitution grants Congress the power “to regulate Commerce with foreign nations, and among the several States, and with the Indian tribes.” Since the New Deal era, the Supreme Court has allowed Congress to use this power to regulate commercial transactions of any kind, even highly localized ones, on the premise that commerce within a state has a “substantial effect” on commerce between states.
If you’ve kept up with the various Obamacare court rulings, or Commerce Clause rulings generally, you’ll be familiar with the litany of important but inconsistent Supreme Court opinions since the New Deal: Wickard v. Filburn (1942), in which Roscoe Filburn was ruled to have violated congressional wheat-production quotas by growing wheat on his own farm for his own consumption; Heart of Atlanta Motel v. United States (1964), in which a motel was required to serve black travelers because “discrimination by hotels and motels impedes travel”; United States v. Lopez (1995), the first ruling since the New Deal to place constraints on the Commerce Clause; United States v. Morrison (2000), the Violence against Women Act case discussed above; and Gonzales v. Raich (2005), in which the Court ruled that Angel Raich could not grow marijuana for her personal use because it might affect interstate commerce in marijuana.
Gonzales v. Raich is the case that liberals have been using most effectively to defend the individual mandate, given that it is a recent decision in which Anthony Kennedy joined the majority, with Antonin Scalia concurring. After all, if Congress can regulate the growth of marijuana for personal, non-commercial use, surely it can require people to buy health insurance?
Judges Dubina and Hull, therefore, spend a lot of time discussing this case — more than other judges have spent in anti-mandate rulings. They point out that the Supreme Court made a significant effort to distinguish the Raich case from the recent Lopez and Morrison rulings, in which the Supremes reinstituted restrictions on the Commerce Clause: The production of marijuana was much like Roscoe Filburn’s production of wheat, whereas the Lopez and Morrison cases involved non-economic activity: gun possession near schools, and violence against women.