The Corner

Eleventh Circuit’s Mandate Decision

Today’s Eleventh Circuit Court of Appeals ruling that the individual mandate is unconstitutional is tremendously significant. (I’ve posted excerpts here.) It reifies the seriousness of the anti-mandate arguments and makes Supreme Court review of the mandate’s constitutionality that much more likely. Unless the federal government seeks en banc review, and the full Eleventh Circuit reverses the panel decision, the Supreme Court will take a mandate case.

Since the beginning, mandate supporters have been busy working the refs, doing everything possible to suggest that arguments against the mandate’s constitutionality were well outside the legal mainstream. The idea was to suggest that no one but a partisan hack or ideologue could believe the mandate exceeds the federal government’s enumerated powers. Today’s decision will make such arguments that much more difficult to make. The two Circuit Courts to have considered the question have come to opposite conclusions, each by a 2-1 margin. Moreover, in each case a judge ruled against type — casting a vote contrary to what one might predict based upon the party affiliation of the President who appointed him. In the Sixth Circuit, Bush nominee Jeffrey Sutton voted to uphold the mandate.  In the Eleventh Circuit, Clinton nominee Frank Hull voted to strike it down. This further illustrates that the constitutionality of the mandate is an open question, not clearly dictated by existing precedent. At the same time, as I note here, the argument championed by many academics that the mandate is a constitutional exercise of the taxing power has yet to be accepted by a single federal judge, let alone by a court.

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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