In a 2-1 decision, the Atlanta-based 11th Circuit Court of Appeals has ruled that the individual mandate in the Obama administration’s health-care reform package is unconstitutional, but has upheld other parts of the package.
But without the mandate, much of the reform becomes fiscally impossible….
More to come.
UPDATE: Some pertinent quotes from opinion:
“Economic mandates such as the one contained in the Act are so unprecedented, however, that the government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses their constitutionality. Nor does our independent review reveal such a precedent….
“The fact that Congress has never before exercised this supposed authority is telling. As the Supreme Court has noted, “the utter lack of statutes imposing obligations on the States’ executive (notwithstanding the attractiveness of that course to Congress), suggests an assumed absence of such power.”
… the individual mandate is a sharp departure from all prior exercises of federal power.
“In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future. 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.”
In effect, the court seems to be saying that if Congress had used its powers of taxation to implement the mandate, it could have done so. But since it chose instead to use its powers under the Commerce Clause, it has stretched too far. …
Judge Stanley Marcus — a Republican originally appointed to the bench by Ronald Reagan — published a lengthy and strenuously argued dissent:
“In the process of striking down the mandate, the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court. It has ignored the broad power of Congress, in the words of Chief Justice Marshall, “to prescribe the rule by which commerce is to be governed.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). It 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. It has ignored the Supreme Court’s expansive reading of the Commerce Clause that has provided the very foundation on which Congress already extensively regulates both health insurance and health care services. And it has ignored the long-accepted instruction that we review the constitutionality of an exercise of commerce power not through the lens of formal, categorical distinctions, but rather through a pragmatic one, recognizing, as Justice Holmes put it over one hundred years ago, that “commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.”
….The plaintiffs and, indeed, the majority have conceded, as they must, that Congress has the commerce power to impose precisely the same mandate compelling the same class of uninsured individuals to obtain the same kind of insurance, or otherwise pay a penalty, as a necessary condition to receiving health care services, at the time the uninsured seek these services. Nevertheless, the plaintiffs argue that Congress cannot do now what it plainly can do later. In other words, Congress must wait until each component transaction underlying the cost- shifting problem occurs, causing huge increases in costs both for those who have health care insurance and for health care providers, before it may constitutionally act. I can find nothing in logic or law that so circumscribes Congress’ commerce power and yields so anomalous a result.”
“… Although it is surely true that there is no Supreme Court decision squarely on point dictating the result that the individual mandate is within the commerce power of Congress, the rationale embodied in the Court’s Commerce Clause decisions over more than 75 years makes clear that this legislation falls within Congress’ interstate commerce power.”
– Jay Bookman