UPDATE at 5:10 p.m.: Rather than tackling the severability issue in this post, I’ve put up a separate item about it.
UPDATE at 3:35 p.m.: Here’s a joint statement about the ruling from Gov. Nathan Deal and Attorney General Sam Olens:
We applaud today’s ruling from the United States Court of Appeals for the 11th Circuit striking down the individual mandate as ‘a wholly novel and potentially unbounded assertion of congressional authority.’ Today’s ruling recognizes the core principles of our federalist system and reminds an over-reaching federal government that the Constitution applies to it, too.
We do not, however, agree with all findings in the decision. Unlike the 11th Circuit, we believe that the Obama administration should be taken at its word that the individual mandate is crucial to the whole bill, and that the whole bill should be struck down. But this much is certain: Federal healthcare reform is on life support, and this case will be decided by the Supreme Court of the United States. Today is a huge step toward victory, but it is also a day that emphasizes the importance of the work ahead.
That the case is headed for the Supreme Court is the only thing everyone involved agrees on.
UPDATE at 3:30 p.m.: One other thing about the mandate: The ruling notes that every court to consider Obamacare has dismissed the administration’s argument that the penalty for failure to buy health insurance is a tax, rather than a regulatory penalty. Of course, not even the White House or congressional Democrats called it a tax until after they passed the law.
UPDATE at 3:25 p.m.: The ruling is long — 304 pages in all, and well more than 100 pages about the history of the Commerce Clause and the constitutionality of the individual mandate. But this is the key paragraph about one of the key questions: Is the individual mandate an example of Congress’ regulating economic activity, or of its forcing people from inactivity to activity:
It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. … Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption — past, present, or in the future. Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry.
Next I’ll tackle the issue of severability — whether the rest of the law can stand even though the individual mandate is found unconstitutional. The district court found that there was no severability, leading it to throw out the Medicaid expansion and other portions of the law even though it had found them legal on their own merits. The appeals court said the mandate was severable from the rest of the law.
While I do that, here’s the prediction I made on the day of the hearing:
Gun to my head, I’d predict two and possibly all three of the judges declare the mandate unconstitutional, along with perhaps some directly related insurance reforms (e.g., guaranteed issue), and may also throw out the Medicaid expansion — which is the bulk of the states’ case but hasn’t gotten as much attention as the mandate — but will not declare the entire act unlawful.
I ended up pretty close, although I have to admit I thought Judges Dubina and Marcus would make up the majority; as it turns out, Dubina and Hull ruled against Obamacare and Marcus would have upheld it.
The 11th Circuit Court of Appeals in Atlanta has struck down Obamacare’s individual mandate but left the rest of the law intact, according to numerous reports. This is the lawsuit out of Florida that Georgia and 24 other states joined, and is considered one of the two primary legal threats to the health-reform law. Two of the three judges agreed with the states, and a lower court’s ruling, that Congress had overstepped its constitutional authority in an “unprecedented” way by requiring citizens to buy from private companies “an expensive product from the time they are born until the time they die.”
The case could go next to the U.S. Supreme Court, which of course will be the ultimate arbiter of the law’s constitutionality.
I’m trying to pull up and read the ruling as I type this and will update this post as soon as possible and as frequently as necessary.
– By Kyle Wingfield