11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
The federal court of appeals in the 11th Circuit (which includes Florida) has struck down the individual mandate on Obamacare as beyond the limits of the Congress's powers under the Commerce Clause -- as predicted by yours truly and Richard Epstein on LawTalk! The court's conclusion should be familiar to Ricochet readers -- the Interstate Commerce Clause allows the federal government to regulate people and businesses that choose to enter that national marketplace for goods and services, but it does not give Congress the power to force unwilling citizens into the marketplace to buy what they don't want. Without that constraint, Congress's powers would truly be without limit and the Constitution's basic structure as a balance between a federal government of enumerated powers and state governments with general police powers would be overthrown.
The next interesting question is what now? I think that the Obama administration has been too clever by half in trying to delay federal court review of the healthcare law. I think that it is inevitable that the Supreme Court will step in, and do so during a time when the President will not want to remind voters of this unpopular, expensive, bloated, bureaucratic power grab. Two of the biggest red flags for Supreme Court intervention are now flying (take it from someone who, as a law clerk there, had the job of sorting through hundreds of petitions to find cases suitable for review at the High Court): a lower federal court has struck down an Act of Congress, and there is a split between the federal courts on a question of federal law. Not only is the individual mandate now unconstitutional in the southeastern United States, but the Eleventh Circuit's decision is in direct conflict with the decision of the Sixth Circuit, which upheld Obamacare a few months back. And while the Obama administration can seek review at the "en banc" level, meaning before all of the judges of the Eleventh Circuit rather than just a panel of three judges (as in today's decision), I think it likely the en banc court will not have a mind to overrule their brethren, meaning that the next step would be the Supreme Court, and right during the 2012 election cycle.
- Comment (29)
- · Quote
- · UnfollowFollow (2)
- Pages:
- 1
- 2
- Pages:
- 1
- 2
Comments :
Jun '10
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Darn it. I guess now I won't be able get the federal government to force everybody to buy or rent a Minnesota lake cabin...for their health and relaxation. Michelle Obama would understand my point. It's for the children....
Mar '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
I'd be curious to hear Dr. Yoo's analysis of why the court ruled that the mandate can be severed from the rest of the law. I did a cursory reading of the opinion, and this seems to be the rationale for exercising restraint:
"These congressional findings do not address the one question that is relevant to our severability analysis: whether Congress would not have enacted the two reforms (guaranteed issue and coverage for pre-existing conditions) but for the individual mandate. Just because the invalidation of individual mandate may render these provisions less desirable it does not ineluctably follow that Congress would find the two reforms without the mandate so undesirable as to prefer not enacting them at all. The fact that one provision may have an impact on another provision is not enough to warrant the inference that the provisions are inseverable. This is particularly true here because the reforms of health insurance help consumers who need it the most."
Without more, the Court chose to exercise restraint and leave the ultimate fate of the bill without the mandate up to the Supreme Court and ultimately (I believe) to the Congress.
Jul '10
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Despite the lack of a severability clause, the accounts suggest this court's ruling severed anyway, just striking down the mandate while leaving the rest intact. Is this at all cricket?
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
From a political perspective, the timing of this could not be better. With a bit of luck, we will have in November 2012 a perfect storm.
Edited on Aug 12, 2011 at 12:40pmApr '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Glory Hallelujah, and from a Clinton appointee to boot. Now it's time to ask my representatives how they will vote if the Supreme Court finds the mandate unconstitutional.
On a personal note. I pay for my family's and my employee's medical insurance. I've worked for quite awhile with one insurer and have been lucky. I'm glad not to lose that relationship to get DMV-like service and bureaucratic hassle like my customers who have Medicare.
Jun '10
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
It's like ruling that basketball players don't have to dribble the ball anymore, but they're not sure if it will affect the game at all. I think it might.
Jun '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Once again, Obama proves to be the greatest President the Republicans have ever had.
I thank God every day for his election. Nothing short of an incompetent, inexperienced ideologue would have given us the chance for real "change."
Jun '10
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Sisyphus, lots of discussion of this on ultra vires's Member Feed post. The opinion link is posted there as well. Page 189 et seq of the opinion is exhaustive and conclusive on the severability question. Whether the intent and structure of the ACA can be achieved without one of its primary revenue drivers is another question. It was a dog's breakfast before this decision, it is just ridiculous now.
Jun '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
etoiledunord
It's like ruling that basketball players don't have to dribble the ball anymore, but they're not sure if it will affect the game at all. I think it might. · Aug 12 at 12:44pm
I'm no expert but insurance companies and bookies are very much alike.
If they can't spread their bets out, they will blow up their book.
Without the mandate, whatever math there is behind this Eugeni- oops - Obamacare Plan should be totally useless.
Apr '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Good question. However without the mandate, the participation will be voluntary. You will have to buy in to this insurance to be effected by it. My guess is the HHS won't be able to implement without the mandate.
May '10
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Hooray! With the money I save from the individual mandate, I can buy a Chevy Volt! Yes I Can!
Mar '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Courts can sever portions of a law and leave other portions intact without the existence of a severability clause. Such a clause usually just memorializes the ability of the remaining statute to stand if part is invalidated. Judge Vinson discussed this at length in his opinion. The courts are bound by a doctrine of restraint to allow Congress to legislate and expect to have its legislation upheld unless it violates the Constitution. Severability allows the courts to give Congress the ability to exercise its authority to the maximum extent. That said, I still liked Judge Vinson's analysis, because the absence of a severability clause doesn't mean that, after a party goes into court and testifies that the mandate can't be severed without the entire bill falling, there should have been complete invalidation of the act. I think the Supreme Court will see it that way, as well.
Aug '10
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
The opinion is quoted as saying, "We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers." This makes me think that it will be a requirement of overturning this ruling that the court would have to either give what principle they find in the law that does bound the powers given to congress by the law or say why not limiting the power in any principled way is not a problem. Is that right? I just can't imagine how that argument might go without being ad hoc.
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
I have several reactions. The first on the question of strategy and tactics, I agree with John completely. This case is heading upward, and sooner than one might expect. The conflict between the circuits adds icing to the cake. But the importance of the issue, the novelty of the claims, and the deep divisions on the issue are in themselves enough to make this an automatic gimme,—and this from someone who has never clerked for anyone.
The merits are harder to predict. John gives the conventional line that dragooning people into commerce when they would like to stay out of it is not regulating commerce. There are no laws that force ordinary people to enter into what they regard as losing transactions. It is as though the way the current administration wanted to solve unemployment was to command all firms with more than 1,000 workers to hire an additional 10 percent, willy nilly, to their ranks. But this is a coercion and autonomy more than a limited federal power can claim. Quite simply, the same objection should apply if states did the same thing under their unlimited police powers (i.e. without the enumerated powers difficulty).
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
I have always liked the substantive due process line better than the commerce clause line. But the statute is in my view so toxic in its ramifications that I will take any nullification I can get. That statement beyond principle is what may well decide this case. The rumblings about the statute and the recent presidential implosion make it easier for the court to knock this statute out when it takes the fabled route of following the election returns. The electorate does not like to be bullied in a time of declining standards of living.
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Great news! The Court absolutely demolished the administration's argument that the Commerce Clause gives the government power to direct all "economic decisions":
Jul '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Additional thoughts on the severability question from Jen Rubin:
And finally, on severability, there is an extremely long and detailed argument, the nub of which is this: there is a grab bag of provisions in the bill that don’t have much to do with the individual mandate and can be preserved: “While such wholly unrelated provisions are too numerous to bear repeating, representative examples include provisions establishing reasonable break time for nursing mothers, 29 U.S.C. § 207(r); epidemiology-laboratory capacity grants, 42 U.S.C. § 300hh-31; an HHS study on urban Medicare-dependent hospitals, id. § 1395ww note; restoration of funding for abstinence education, id. § 710; and an excise tax on indoor tanning salons, 26 U.S.C. § 5000B. . . . In light of the stand-alone nature of hundreds of the Act’s provisions and their manifest lack of connection to the individual mandate, the plaintiffs have not met the heavy burden needed to rebut the presumption of severability. We therefore conclude that the district court erred in its wholesale invalidation of the Act.” Bet you didn’t know all that was in there.
Mar '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Aren't you glad Congress passed the bill so we could all see what was in it?
Sep '10
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
The dissenting judge wrote:
The majority "has ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy," wrote Marcus, also a Clinton appointee to the appeals court.
I'm no lawyer, but is this what they mean by a living and breathing Constitution? It sounds to me like he is saying, "Well, technically it is unconstitutional but the Constitution is like old and stuff. Besides Congress oversteps its power all the time. Why complain now?"
Mar '11
Re: 11th Circuit Court of Appeals Strikes Down Obamacare's Individual Mandate
Vance Richards: The dissenting judge wrote:
The majority "has ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy," wrote Marcus, also a Clinton appointee to the appeals court.
I'm no lawyer, but is this what they mean by a living and breathing Constitution? It sounds to me like he is saying, "Well, technically it is unconstitutional but the Constitution is like old and stuff. Besides Congress oversteps its power all the time. Why complain now?" · Aug 12 at 1:47pm
What they mean by a "living, breathing Constitution" is that they're too lazy or afraid of the way in which the Constitution was intended to be expanded, and that's by amendment. I'll recommend a great little book: "The Twilight of Individual Liberty" by Hamilton Vreeland. It was written in the late 1940's and explains quite well how the courts have allowed Congress to stretch the Commerce Clause to what we have today.