Critical Condition

‘Breathakingly Expansive’

The Eleventh Circuit decision this month was the most significant court ruling to date in the constitutional challenges to Obamacare, and it virtually assures a U.S. Supreme Court hearing, most likely in the coming term. The Eleventh Circuit court was very blunt in saying that the individual mandate is not only unconstitutional but “is breathtaking in its expansive scope.”

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.

Earlier, a Sixth Circuit Appeals court ruled in a separate challenge that the mandate is constitutional. Several more cases are pending, but the split in the two appeals court decisions tees it up for resolution by the Supreme Court.

The overriding question is whether Congress can continue to expand its economic and regulatory power under the Commerce Clause of the Constitution or whether it’s finally time for someone to say, “Stop!” The Eleventh Circuit chose the latter:

There is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks.

. . . Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government…we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.

. . . What Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.

If the individual mandate is upheld, the next step surely will be requiring that we all purchase Obamacare’s long-term care insurance, especially since HHS secretary Kathleen Sebelius has acknowledged that program is “totally unsustainable” now.

The court said it could find no precedent for a mandate on individuals to purchase government-approved health insurance:

Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products…[But even] in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle. . . .

The government’s position amounts to an argument that the mere fact of an individual’s existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress’s enumerated power.

And the court didn’t buy the government’s argument that the mandate is constitutional because Congress needs it for other provisions in the law to work.

It simply will not suffice to say that, because Congress has regulated broadly in a field, it may regulate in any fashion it pleases.

The court took several shots at the legislation itself, including the weak penalties for not buying insurance:

Congress has hamstrung its own efforts to ensure compliance with the mandate by opting for toothless enforcement mechanisms.

And the court made it very clear that it finds the law enormously complex.

To know whether a legislative act is constitutional … our task is to figure out what this sweeping and comprehensive Act actually says and does.

The 304-page decision devotes a total of 35 pages to describing what Obamacare does — no small feat.

The administration disagrees, of course, with the Eleventh Circuit’s finding that the individual mandate is unconstitutional, but the court’s extraordinarily detailed and thorough decision, drawing on dozens of prior Supreme Court cases, raises a very high bar. If the individual mandate ultimately is ruled unconstitutional, the center pole in the tent of the monstrous law collapses, setting up a challenge for Congress and the voters to repeal and replace it with more sensible reform.


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