Individual Mandate Unconstitutional
In a victory for opponents of the Obama health reform law, a three judge appeals court panel in Atlanta has found that the individual mandate provision, which requires people to buy health insurance, is unconstitutional - though the rest of the law is not.
The court's majority wrote that "the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress's power under the Taxing and Spending Clause."
"Further, the individual mandate exceeds Congress's enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded asserts of congressional authorty; the ability to compel Americans to purchase an expensive health insurance product they have not elected to buy, and to make them re-purchase that insurance product every month for their entire lives."
But the appeals panel would not go as far as U.S. District Judge Roger Vinson, who put the entire law on hold, as this ruling found that the Obama health law could go on, even without the individual mandate.
"The individual mandate, however, can be severed from the remainder of the Act's myriad reforms," the Court wrote.
"The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act's other provisions remain legally operative after the mandate's excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met."
This case was brought originally by Florida - then over two dozen other states joined the legal effort against the Obama health reform law.
The 11th Circuit ruling could be appealed either to the full appeals court, or directly to the U.S. Supreme Court.
We are also still awaiting a ruling in a similar case brought by the state of Virginia, in the 4th Circuit.
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© 2012 The Atlanta Journal-Constitution
40 comments Add your comment
T
August 12th, 2011
2:18 pm
Good call by the three judges.
Rafe Hollister
August 12th, 2011
2:22 pm
Great news. If they had thrown out the whole act, maybe or economy would get better right away. As it is the uncertainty has been lessened somewhat as it appears that the SC may buy into this appeal court ruling and toss this provision. Without this funding mechanism the act will have to be revisited and probably will not pass a second time. We simply can not afford this fiasco.
RON PAUL 2012
August 12th, 2011
2:33 pm
once again Ron Paul is on the right side of history…
http://www.freedomworks.org/blog/jborowski/rep-ron-paul-introduces-legislation-to-repeal-indi
Atlanta Native
August 12th, 2011
2:37 pm
Excellent – can we get a link to the text of the opinion?
PS Jaime – your reporting and handling of Mr. Boortz are always spot on.
Tea
August 12th, 2011
2:37 pm
The individual mandate would provide a platform for equitable and efficient spreading of risk (rather than spreading risk based on profitabilty). What reason do we have now to hope the cost of health care will not spiral beyond the reach of the middle class?
Atlanta Native
August 12th, 2011
2:38 pm
“Constitutional? are you kidding me?” No Ms. Pelosi, they weren’t.
Atlanta Native
August 12th, 2011
2:42 pm
@ Tea – no matter how “equitable” it may seem to you, the government cannot force people to buy a product or face sanctions. “It seems equitable to . . . ” is what is bankrupting California. And based on Pentagon prices for hammers, why would you think costs would go down? No government controlled program has ever gone down in price.
Tea
August 12th, 2011
2:55 pm
It is equitable in that the most efficient way to spread risk among a population to put everyone in the same risk pool, not in several hundred thousand seperate risk pools designed to maximize profit for the health care oligopoly. As much as you love to hate government (and there’s plenty of reason to justify those feelings), simply diminishing the government’s role in healthcare will not help solve the problem. Policy and action is required at the national level and private industry cannot provide that.
Augusta opinion
August 12th, 2011
2:58 pm
In the 1930’s, in Schechter Poultry Corporation v. United States, the Supreme Court stated in its ruling: “Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. … Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. … It is not the province of the Court to consider the economic advantages or disadvantages of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it”. Still sound like sound Constitutional interpretation to me…
Logic
August 12th, 2011
2:59 pm
“If they had thrown out the whole act, maybe or economy would get better right away.”
If you believe that, you are an idiot. Yes, this provision of the law was obviously unconstitutional. The entire healthcare law that was enacted was a travesty built from the inability for our two-party congress to work together for the good of the entire country.
Much like the present economical woes, downgrade in the U.S. credit rating, and failure to reach a compromise on budget and spending.
The real problem with our economy is in our corrupted congressmen, not in a botched healthcare law.
Atlanta Native
August 12th, 2011
3:04 pm
As stated so eloquently by August Opinion, we are stuck with the Constitution as our basis of government. Unluckily, I believe the Schecter Poultry case is the precedent upon which the massive expansion of the commerce clause began (not mentioning the Heart of Atlanta Hotel case and its progeny that lead to geomentric expansion based on justifiable equity and the best of intentions)
Atlanta Native
August 12th, 2011
3:05 pm
“geometric”
Dirk
August 12th, 2011
3:05 pm
Lived in Japan for 15 years and enjoyed that country’s reasonably priced, market-based single-payer health care system. My entire family of three was covered for $3500. We could see any physician in the country as often as we like. There were no waits. Don’t believe what the conservative corporate shills tell you about single-payer health care. No system is perfect but no country wishes it had the US healthcare system.
Don Zauderer
August 12th, 2011
3:10 pm
How can we consider ourselves a “good” society when millions of Americans are without healthcare and become bankrupt by health care bills. And for those worried about the costs, they might consider that private insurance has been going up at about 12% a year — due partly by the need to create around 20% profit to satisfy wall street. Before celebrating this unfortunate court decision, individuals might consider what it would be like if they were without insurance? Would the word “desperation” properly describe their feelings?
Tea
August 12th, 2011
3:10 pm
$3500! Wow, that’s great, I pay $7692 a year for health insurance (not including the $10k annual deductible). And I’ve vever even been in the hospital nor do I have any chronic health problems. I don;t even smoke! I just happen to live in the country with the worst health care system in the world, where we ration health care based on wealth, not need.
Atlanta Native
August 12th, 2011
3:11 pm
@ Dirk – what works well in a homogeneous culture with a strong work ethic and social structure such as that in Japan does not mean it will work here. The Japanese mind set is totally different than that of America. Can you imagine Americans being motivated by shame? Cooperating on subways? Living in close quarters and not clashing?
Dirk
August 12th, 2011
3:16 pm
And another thing, for those that say it can’t be done, Israel, Taiwan and Switzerland reformed their own systems in the 1990’s with each country creating a very different healthcare system that meets their citizens’ needs.
Tea
August 12th, 2011
3:26 pm
Atl Native – I am ashamed to say I cannot, unfortunately, imagine Americans motivated by shame. Ours is a most self-rightous, self-absorbed, self-important, politically intolerant, superficial culture. With a population so easy to manipulate, it is no wonder almost all aspects of American culture are saturated with advertising. And no wonder our politicians (Dem, Rep, Tea) can successfully ignore our nations real problems while simultaneously leaveraging them for thier own political puposes.
Atlanta Native
August 12th, 2011
3:26 pm
I am not saying parts of our healthcare system are not broken – they are. There needs to be a safety net, and a better one than we have now. The problem was that, rather than overhaul and fix the existing healthcare system provided by the government, Congress enacted a new system and did nothing with Medicare and Medicaid. We need an answer, not another morass, which is what we got. We need a Constitutional bi-partisan answer not specifically drafted to keep the country beholding to one party for their needs. This Act is a mess that the supporters neither read nor understood.
Atlanta Native
August 12th, 2011
3:28 pm
Hey Tea! We agree! I
Dirk
August 12th, 2011
3:39 pm
@ATL Native,
Yep, we need a single-payer system, no doubt. What did the Republicans do to bring that about during the Bush administration?
AC
August 12th, 2011
3:40 pm
We need universal Medicare. Government spending on health care is enough, right now, all by itself, to fully fund (at 120% of the per-capita rate at which the UK’s NHS is funded) an American universal health care system.
This would also free up about $1 trillion in private health care spending, which would no longer be needed for this purpose. Perhaps it could be used to hire people to do something other than fill out insurance paperwork?
Tea
August 12th, 2011
3:40 pm
I think we do Atl N. There are other aspects of the Health Care law that will likely be beneficial. Encouraging interstate competition among health care providers is one. That aspect of the bill is from the Republicans, although they do not claim it since (like the other pols) they clearly see their mission of vilifying their opponent as taking precidence over improving healthcare.
Greenmtns
August 12th, 2011
3:42 pm
I think if the government were allowed to train physicians through veterans hospitals, i.e. bypass the AMA, Then we could load the VA hospitals with doctors and make them the clinics that treat uninsured. The AMA restricts medical school applicants to keep the supply of doctors low compared to demand to maximize a doctors earnings. Look at all the lawyers we have! if we had that many doctors, they would be fighting over patients.
Atlanta Native
August 12th, 2011
3:49 pm
@ Dirk – I am against a “single payer” system (read “government system”). What did the Republicans do under Bush? Not much. Heck, if not for the present administration, they would be the biggest tax and spend administration so far.
The problem with single payer government system in the US is that government jobs are property rights under US law and subject to the takings and due process provisions of the Bill of Rights. Quite simply, I want my healthcare workers and administrators to understand that they can lose their job if they are incompetent, lazy or otherwise unfit. By going government, workers will not be able to be removed from their position without hearings, appeals, etc. No thank you, I do not want DMV type employees in charge of my healthcare decisions.
Atlanta Native
August 12th, 2011
3:52 pm
Also, I do not want the government to have full access to my Healthcare records. Period. Maybe I paid too much attention while reading Orwell, Huxley and the like, but I believe that some pigs will always end up more equal than others and I do not want the fate of the dutiful plow horse on our little animal farm.
Lisa Perkins
August 12th, 2011
4:22 pm
Why isn’t mandatory car insurance illegal?
Lisa Perkins
August 12th, 2011
4:26 pm
If car insurance wasn’t required, I could stop paying for that and if I have a wreck everyone else can pay for it in the form of higher premiums. I love it!
Now those of us that do have health ins are paying for those who don’t. They still use the services they just get off free.
Jared Watson
August 12th, 2011
4:37 pm
@Lisa Perkins The same reason that employers can legally require mandatory drug screening for new hires…for protection. Driving is a privilege, not a right. Car insurance help drivers take financial responsibility for the damages they cause to others and their property.
litz
August 12th, 2011
4:58 pm
Two reasons on car insurance :
1) it’s mandated by the STATE …
2) it’s not required. It’s required if you want to own/drive a car. No car? No requirement.
Dirk
August 12th, 2011
5:07 pm
@ATL Native,
Japan has a single payer system AND that country’s percentage of privately owned hospitals and clinics is higher than here in the USA. Single payer DOESN’T necessarily mean what the fear mongers would have us believe.
Dirk
August 12th, 2011
5:12 pm
Is anyone aware that the millionaire governor of Florida Rick Scott who is opposed to heath care reform pays only $30 a month to cover his entire family under that state’s program for high ranking employees. Individual coverage is only $8.34 a month.
Tom
August 12th, 2011
5:17 pm
There is a reason healthcare costs have reason year-on-year for every year since the system as it is devised today was created. Its because the insurance companies who work on profit negotiate costs with a third party who operate on profit from the healthcare providers who typically work on a non-profit. Guess who wins that argument? The monied interests or the social good? Therefore, the reason we want single payer is because the government can negotiate the cost and settle on a fair-price for everyone and start getting a handle on these out of control costs which have happened when a social good was put under control of profit-seekers.
Lisbe
August 12th, 2011
5:20 pm
The funny thing about that is that countries who DO cover everyone do so with deficits about half the rate of ours–or less. France, for instance, covers everyone, not just the elderly; they still have the third-highest defense budget in the world, and they make arms that the whole world seeks to buy; and they do this with a deficit-to-GDP ratio of around 3% most years, worse since the downturn, but still not half of America’s, which hovers around 10% of GDP, WITHOUT universal healthcare.
Canada and Germany, too, have done quite well with universal healthcare, and also have very low deficits compared to ours. Both have excellent export economies, like the United States USED to have. Germany achieves this partly because of their vocational school system, to train people for industry, so both industry and the country benefits from that as well; but the Tea Party is against the funding of schools, also.
Germany and France are the ones being asked to bail out countries like Greece (who are suffering because of tax evasion, while, for some reason, the Tea Party says “we have to have MORE tax evasion, like Greece has, in order to avoid becoming like Greece”). So obviously, they’re the success stories.
So it’s pretty clear it can be done–all we need to do is stop being arrogant and stubbornly pursuing ways that don’t work, and admit that others do some things better than we do, and copy them. It’s true that no public health system can provide EVERYTHING its people want; but, plainly, our own system is serving our public much worse than France’s or Germany’s are serving them. They do this by having a rate of taxation that covers these things, but under which the rich still do perfectly well in their lives. You just let me know when a rich person in the developed world starves because of taxation.
Lisbe
August 12th, 2011
5:31 pm
@LItz
“Two reasons on car insurance :
1) it’s mandated by the STATE …
2) it’s not required. It’s required if you want to own/drive a car. No car? No requirement.”
++++++
Really a weak argument in a country with inadequate public transportation compared to Western Europe and Japan. No car, no job in the USA.
Tracy
August 12th, 2011
7:48 pm
Even though I consider myself left-leaning, I was fully against the mandate. Why ? because it does not help.
If you’re someone right now making 20k a year, the mandate will only screw you. You still can not afford health insurance, plus you’d be punished for not buying something you can’t afford ???
Most people without insurance want it. They don’t have it because they can’t afford it. How is forcing people to buy what they can’t afford a “plan” ?
Then again, looking at our 14+ trillion debt, I think the government assumes buying what you can’t afford is normal behavior.
LIGHTNING WALKER
August 12th, 2011
8:43 pm
Enter your comments here
Sharday
August 12th, 2011
9:38 pm
T
August 12th, 2011
2:18 pm
Good call by the three judges.
Actually it was a 2-1 decision.
And the rationale posited by Judge Marcus in his dissent – that Congress can require an individual mandate ‘because it’s power has grown in the last 20 years’ – is absurd. That’s like a judge acquitting the speeder who was doing 80 mph in a 55 zone on the basis that “well, people just drive faster nowadays.”
Johns creek resident
August 13th, 2011
11:34 am
It would be more reasonable for the government to mandate that people diet, exercise, and quit smoking and drinking. That would actually reduce medical care instead of giving even more money to doctors, hospitals, and health insurance companies.
JOSEPH BOZARD
August 13th, 2011
1:16 pm
WELL IM SO GLAD ARE FOUNDING FATHERS SEEN FIT TO HAVE SUCH A WELL STRUCTURED DOCUMENT TO PRESERVE THE WAY AMERICA SHOULD BE & REMAIN A NATOIN WHERE FREE MEN DWELL. ALSO IT KEEPS LEFTESS COMMIES LIKE BARROCK “HUSAIN” OBUMA FROM DOING DAMMAGE TO ARE GREAT WAY OF LIVING.