11th Cir. Rules Individual Mandate in Health Care Bill Unconstitutional

Obama's health care bill took a hit today.

A federal appeals court in Atlanta on Friday struck down a key provision of the Obama administration's health care reform law, ruling that Congress exceeded its authority in mandating that most Americans buy health insurance by 2014 or face a penalty.

A divided, three-judge panel of the 11th Circuit Court of Appeals ruled that the individual mandate was "breathtaking in its expansive scope" and therefore unconstitutional. The "individual mandate," they wrote, "exceeds Congress's enumerated commerce power."

The opinion is here.

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    My favorite whopper from the opinion: (5.00 / 1) (#1)
    by andgarden on Fri Aug 12, 2011 at 05:21:22 PM EST
    [T]he mere fact of an activity's substantial effects on interstate commerce does not thereby render that activity an appropriate subject for Congress's plenary commerce authority.

    p. 146

    The majority produced a tome. I guess that's what you have to do when you're writing against the clear force of precedent.

    A US Circuit judge once told me (none / 0) (#2)
    by christinep on Fri Aug 12, 2011 at 05:40:48 PM EST
    way long ago essentially what you said in your concluding sentences. He used to quote Mark Twain's quip about apologizing to a friend for writing such a long letter...because he didn't have enough time. (And, he did keep his opinions short, bemoaning the first time he went over ten pages. As you may have noticed, opinions have been growing longer for years.)

    I've heard that quip before (none / 0) (#4)
    by andgarden on Fri Aug 12, 2011 at 05:53:12 PM EST
    and I think it applies here--unless the obfuscation is intentional. I think it may be.

    And yes, opinions have gotten much longer in the past 30 years or so. I think there must be a number of reasons why, but one that comes to mind is that judges have changed with the legal profession and with culture in general. Look at how medicine has changed. :D


    The opinion does give (none / 0) (#6)
    by KeysDan on Fri Aug 12, 2011 at 06:10:44 PM EST
    a nice review and organization of the health care act. But I see what you mean about a 'hair-pulling' slog.

    Perhaps computers add to the length? It's so (none / 0) (#10)
    by jawbone on Fri Aug 12, 2011 at 07:06:38 PM EST
    much easier to revise, add things, etc.

    Just a thought.


    No doubt that's part of it (5.00 / 1) (#11)
    by andgarden on Fri Aug 12, 2011 at 07:08:21 PM EST
    I think the emergence of Lexis and Westlaw contributed greatly.

    I'm sure if you fired their clerks and (none / 0) (#16)
    by Dan the Man on Fri Aug 12, 2011 at 08:34:31 PM EST
    had the judges write everything by themselves, it would be much shorter.

    Well, I think the clerks have written (none / 0) (#17)
    by andgarden on Fri Aug 12, 2011 at 08:49:34 PM EST
    the opinions since long before the opinions exploded in length.

    When I was a judicial law clerk, (none / 0) (#21)
    by Peter G on Fri Aug 12, 2011 at 10:27:13 PM EST
    lo these many years ago, the judge I worked for told me that my main job was to shorten his opinions.  That was unusual, but it was true in my case.

    I have often felt the same about Congress (none / 0) (#26)
    by jimakaPPJ on Sat Aug 13, 2011 at 09:55:24 AM EST
    The quip was Blaise Pascal's (none / 0) (#25)
    by Mr Natural on Sat Aug 13, 2011 at 09:43:37 AM EST
    from his letter of December 4, 1656:

    "Mes Révérends Pères, mes lettres n'avaient pas accoutumé de se suivre de si près, ni d'être si étendues. Le peu de temps que j'ai eu a été cause de l'un et de l'autre. Je n'ai fait celle-ci plus longue que parce que je n'ai pas eu le loisir de la faire plus courte."

    "Reverend Fathers, my letters are not accustomed to following themselves so closely, nor to being so extended. The little time I have had has caused the one and the other. I have made this one longer only because I have not had the leisure of making it shorter."

    my source: http://tinyurl.com/3uh3hfo


    What if all laws HAD to have a flow (none / 0) (#24)
    by seabos84 on Sat Aug 13, 2011 at 09:33:26 AM EST
    chart of how the law would work, and,

    cost estimates for each step & task in the flow chart?

    My "law" background consists of a community college class in business law, a school of ed class in education law, and various intro American gov classes.

    To me, since too few white collar workers are PUNISHED (Fired) for being vogons, and since too few are well rewarded for making stuff work well, too many like to act like all their utterances and their emanations and their illuminations are ... The Magna Carta, Dred Scot or Brown Vs. Topeka, Marbury V. Madison.

    I'm a 51 yr. old Seattle teacher union rep, 6 years teaching - our 130? 150? page contract sucks up so much time of deciphering and decoding and debating - it seems too often that the spirit of the law / rule has turned into - WTF??

    is THE POINT employing hordes of deciphererers ??

    or getting stuff done?

    thanks for your thoughts,

    r. murphy


    an individual mandate is essential (5.00 / 4) (#5)
    by The Addams Family on Fri Aug 12, 2011 at 06:06:34 PM EST
    to universal coverage

    but the bill that was passed last year does not provide universal coverage, and the mandate, as so-called Obamacare now stands, will force people to buy cr@p commercial insurance policies while rates go up and up and actual coverage goes down and down

    i don't know if today's decision will stand but for today i am very glad to see it

    Medicare for all

    Medicare for all! (5.00 / 4) (#7)
    by Militarytracy on Fri Aug 12, 2011 at 06:38:59 PM EST
    Yes, as I was reading (5.00 / 3) (#8)
    by KeysDan on Fri Aug 12, 2011 at 06:57:57 PM EST
    the opinion and the Court's daunting task of deconstructing and then, reconstructing the Rube Goldberg set up,  the thought of the relatively simple movement to Medicare for All kept popping up.   More likely, however, is Medicare for None.

    Not in this Congress, anyway (5.00 / 3) (#9)
    by andgarden on Fri Aug 12, 2011 at 07:02:23 PM EST
    I think it would be a pretty good pivot for House Democrats--if they can grow the discipline to actually support such a thing.

    Excellent news (5.00 / 4) (#20)
    by LatinDem on Fri Aug 12, 2011 at 10:16:26 PM EST
    Obama really cheated us with the individual mandate. Especially with his fake support of the public option, up until the last minute when he had to pull it out and rush the passage of the bill without the one key piece that would have made it palatable to those wanting true UHC.

    I'd rather buy into Medicare or Medicaid (or VA or any other socialized medicine system we currently utilize) without the overhead of the insurance industry taking their "investment percentage" off the top of what we pay for health care costs.

    but that won't be the outcome (none / 0) (#29)
    by desmoinesdem on Sat Aug 13, 2011 at 09:59:17 AM EST
    if the SCOTUS strikes down the individual mandate, you're not going to be able to buy into any decent public plan.

    In other words (none / 0) (#32)
    by TeresaInSnow2 on Sat Aug 13, 2011 at 11:44:34 AM EST
    ...nothing would change from what we have today.

    I am on individual insurance.  Because my insurance company has had to already enact some components of the un-ACA, my already lousy insurance plan (which is the best plan offered in my state by Blue Shield) has reduced benefits...and the excuse for the reduced benefits is to keep my plan "affordable" with the enactment of the new law.

    Insurance companies have treated this as a shell game.  Oh yeah, we have to increase benefits here, but to do so, we'll DEcrease them where nobody has explicitly said we can't....

    We, on the individual market, have LOST because of this act.


    I must be the only beneficiary (5.00 / 2) (#34)
    by easilydistracted on Sat Aug 13, 2011 at 01:03:50 PM EST
    Prior to ACA I was in a state sponsored high risk pool because the usual suspects kept denying me coverage. I was able to hop into the the pre-existing condition plan brought about by ACA. I'll admit, the legislation fell way short, but in may case, I'm saving about 400 bucks monthly in health care premium. Not to mention much better benefits.  

    Thank you (none / 0) (#42)
    by sj on Mon Aug 15, 2011 at 01:44:31 AM EST
    It's good to hear that someone has benefited.

    Yes, it's clearly long past time to (none / 0) (#33)
    by LatinDem on Sat Aug 13, 2011 at 12:36:54 PM EST
    fire this president so we can fix the messes he's made, or force him to lead the movement he started in a manner that actually supports the common American instead of the super rich. Obama wants to do both, but you just can't. It's either us or them...

    Maybe (none / 0) (#3)
    by Ga6thDem on Fri Aug 12, 2011 at 05:51:58 PM EST
    one of the legal eagles around here can tell me what this means because to me it just seems like another opinion that doesn't really mean much.

    Excellent question, to which (none / 0) (#22)
    by Peter G on Fri Aug 12, 2011 at 10:37:22 PM EST
    a good answer will be found in Lyle Denniston's analysis at SCOTUSBlog.

    "And it found... (none / 0) (#31)
    by Mr Natural on Sat Aug 13, 2011 at 10:21:01 AM EST
    ... that the mandate simply reached much further than was justified, commenting that it was "breathtaking in its expansive scope," treating an individual's "mere existence" as having a substantial impact on interstate commerce, so that Congress would have power to "regulate them at every point in their life."

    - Denniston


    Bear in mind, to be clear, (none / 0) (#35)
    by Peter G on Sat Aug 13, 2011 at 01:14:30 PM EST
    this was Denniston (a highly experienced and insightful journalist) quoting from the opinion, and thus repeating the views of the two-judge majority, not giving his own assessment.  As Andgarden has pointed out, the majority opinion appears to diverge radically (word chosen carefully) from existing Supreme Court precedent on the scope of the Commerce Clause power.  In other words, if the activity in question (here, the acquisition of health care services, and the business of designing and selling health insurance), in the aggregate, substantially affects interstate commerce (which here, it obviously does), then Congress can regulate even essentially trivial and local instances of that activity, which contribute to the aggregate.  And that regulatory scheme can require an individual to act (sometimes) or refrain from acting (more commonly).  The limitations on this Congressional power are the rights of the individual, as also defined in the Constitution.  This is why, for example, according to the courts, the federal government (and not just the state legislature or town council) can prohibit you from growing marijuana for your own consumption in your own back yard, and why Congress can establish a federal agency to regulate the safety standards for the storage, transportation and sale of food, even if grown in-state.

    As Justice Marshall explained: (5.00 / 1) (#36)
    by andgarden on Sat Aug 13, 2011 at 01:23:48 PM EST
    It is, we think, impossible to compare the sentence which prohibits a State from laying "imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," with that which authorizes Congress "to make all laws which shall be necessary and proper for carrying into execution" the powers of the General Government without feeling a conviction that the convention understood itself to change materially [p415] the meaning of the word "necessary," by prefixing the word "absolutely." This word, then, like others, is used in various senses, and, in its construction, the subject, the context, the intention of the person using them are all to be taken into view. . . .

     Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

    The 11th Circuit is stuck trying to find a reason to say that the mandate is "prohibited." There isn't one.


    asdf (none / 0) (#12)
    by TeresaInSnow2 on Fri Aug 12, 2011 at 07:21:10 PM EST
    If  the Supremes strike down the mandate, it won't be the first time they wrote law from the bench...

    as in roe vs wade? (none / 0) (#38)
    by diogenes on Sat Aug 13, 2011 at 03:51:11 PM EST
    The Supreme Court struck down laws banning abortion then as being 'unconstitutional".  What's the difference between that and assessing if the individual mandate is constitutional?
    It's all just a steath tax on the healthy anyway.  Better to openly raise taxes and subsidize health care.

    Why would you want the feds force you? (none / 0) (#13)
    by redwolf8 on Fri Aug 12, 2011 at 07:22:26 PM EST
    With that type of power Taco-bell could buy congress and get a law passed forcing everyone to buy their food every day for health reasons.

    I'm not a big supporter of universal healthcare but I would prefer it over this abomination of a bill.  

    Query: could a state legislature (none / 0) (#14)
    by andgarden on Fri Aug 12, 2011 at 07:32:32 PM EST
    compel you to buy Taco Bell? If not, why not?

    No way, I hate Chihuahuas (5.00 / 1) (#15)
    by Dadler on Fri Aug 12, 2011 at 08:27:09 PM EST
    And their beans suck.  I would start a recall petition over this.  Ahem.

    The Pennsylvania Constitution, (none / 0) (#18)
    by Peter G on Fri Aug 12, 2011 at 09:15:35 PM EST
    typically of state constitutions, I think, has a prohibition against the enactment of any "special law ... [r]egulating labor, trade, mining or manufacturing."  Art. III, sec. 32(7).  I think that would invalidate any law favoring a single, particular private corporation, such as Taco Bell.   Arguably, it would also be barred by Article I, sec. 1, which states that among the "inherent and indefeasible rights" of all "men" is the right "of pursuing their own happiness."  I know that in my case, compulsory Taco Bell would surely be inconsistent with that clause.

    What it comes down to (5.00 / 1) (#19)
    by andgarden on Fri Aug 12, 2011 at 09:16:56 PM EST
    is a substantive due process argument.

    But the right wing ACA opponents don't want to admit that's what they're asking for.


    I don't recall righties making SDP arguments (none / 0) (#27)
    by jpe on Sat Aug 13, 2011 at 09:56:21 AM EST
    when MA implemented its mandate.

    That was before Republicans decided (none / 0) (#28)
    by andgarden on Sat Aug 13, 2011 at 09:57:51 AM EST
    that they had a problem with the mandate.

    But would it preclude (none / 0) (#23)
    by itscookin on Sat Aug 13, 2011 at 08:57:52 AM EST
    requiring every person to purchase a health club membership - you choose which club? Or 5 lbs of fresh fruits and vegetables - you choose which ones and the source? Or that everyone own an electric toothbrush, but you can pick your own brand and model? Or that you own one pair of shoes that have been approved by an orthopedist - even if you walk around all day in flip-flops?

    FLORIDA, OF COURSE (none / 0) (#30)
    by kgoudy on Sat Aug 13, 2011 at 10:16:59 AM EST
    there are good bright people in Florida. why does the national law from there suck uniformly?

    Not really accurate in this instance (none / 0) (#37)
    by Peter G on Sat Aug 13, 2011 at 02:14:43 PM EST
    Chief Judge Dubina, who wrote the majority opinion, is from Alabama; he was appointed to the court by Pres. George H.W. Bush.  Judge Hull, who joined with Dubina to form the majority, is from Georgia; although as conservative a judge as you'll find, she was appointed by Pres. Clinton.  Judge Marcus, who dissented, is a New York transplant to Florida; he was appointed to the district court by Pres. Reagan, and elevated to the court of appeals by Clinton. You actually cannot hang a simplistic political label on the judges' votes here.  The Eleventh Circuit is a regional appellate federal court covering cases arising out of all the federal trial courts of Georgia, Florida, and Alabama.

    I agree with this opinion (none / 0) (#39)
    by eric on Sat Aug 13, 2011 at 04:07:07 PM EST
    I am a lefty liberal lawyer, and I agree with this opinion.  The conclusion starting on page 166 explains it in layman terms.  The mandate is unprecedented and is unconstitutional.

    I would (5.00 / 1) (#40)
    by andgarden on Sat Aug 13, 2011 at 04:32:57 PM EST
    point to the "layman's" explanation too.

    That's because the legal explanation is without merit and contrary to binding precedent (IMNSHO).


    Get to the point, cut to the chase, (none / 0) (#41)
    by NYShooter on Sat Aug 13, 2011 at 07:00:33 PM EST
    What's the bottom line?

    Clichés are great because they put thing into proper perspective. And, before we can have a reasonable debate about "Health Care Reform" we have to understand this one, primary fact: "They," (the insurance companies & providers) and the government they have purchased deal with us as victims, or targets, not as clients or customers.

    Once we understand that we can begin to negotiate from a reality basis.