Human Exceptionalism

Obamacare Repeal: Individual Mandate Unconstitutional

By a 2-1 vote–the 11th Circuit Court of Appeals–with two Democratic to one Republican appointees–has ruled Obamacare’s invidual mandate to be unconstitutional. From the Detroit Free Press story:

A federal appeals court panel on Friday struck down the requirement in President Barack Obama’s health care overhaul package that virtually all Americans must carry health insurance or face penalties. The divided three-judge panel of the 11th Circuit Court of Appeals struck down the so-called individual mandate, which is considered the centerpiece of the law, siding with 26 states that had sued to block the law. But the panel didn’t go as far as a lower court that had invalidated the entire overhaul as unconstitutional…The decision, penned by Chief Judge Joel Dubina and Circuit Judge Frank Hull, found that “the individual mandate contained in the Act exceeds Congress’s enumerated commerce power.  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,” the opinion said.

One surely hopes! Alas, the court did not affirm Judge Vinson’s decision invalidating the entire law.

This is big because it is the suit brought by 26 states against the law. A 6th Circuit Court of Appeals, in a case brought by a private party, found the law constitutional by 2-1, with one Republican appointee voting with the majority.  In my view, the current case is far more important because it involves a majority of the states, rather than a private plaintiff.  Still pending; an appeal by the government seeking to overturn the decision by a trial judge that also ruled the individual mandate is unconstitutional. If the court of appeals affirms the trial judge in the Virginia case, Obamacare will be wobbling like a punch-drunk fighter.

Bottom line, with two circuits now in conflict, it all but guarantees a Supreme Court review, not that there was really any doubt. Politically, the decision also ensures the health care law will be a crucial issue in the 2012 election in a very immediate and emotional sense.  In other words, supporters’ hopes that they could create a fait accompli sense of resignation in opponents is not going to happen.  That won’t bode well for the president or Democrats, methinks.


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