11th Circuit says individual mandate is unconstitutional (4th update)

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

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39 comments Add your comment


August 12th, 2011
1:48 pm

This is the kind of story we should see from “reporters” at the AJC.. No liberal ramblings about how this is unfair to the moochers in society. Just the facts.. If the AJC could put forth more news without the liberal bias I might consider using the AJC for more than a place for my dog to “do it’s business”. Just so you know I don’t pay for your paper, my neighbor and I made a deal so that I get the paper after he’s done reading the only decent section which is the funnies.

[...] you know, full articles. Health-Law Mandate Ruled Unconstitutional by Appeals Court – WSJ.com 11th Circuit says individual mandate is unconstitutional | Kyle Wingfield Interesting, but not really a major story as we know that this issue is already headed for SCOTUS [...]

Ben Eng

August 12th, 2011
2:04 pm

Isn’t the next step to appeal to the full panel of the 11th circuit (en banc), before SCOTUS?

stranger in a strange land

August 12th, 2011
2:04 pm

short of the sun coming up tomorrow, next safest bet is that this will be go next to the Supreme’s. That the 11th circuit ruled against the Obama adminstration all but guarantees it

Sid Farcas

August 12th, 2011
2:17 pm

Well I’ll be darned. There is a court that makes rulings based on the Constitution. Liberals everywhere are beside themselves right now.


August 12th, 2011
2:19 pm

I didn’t need the 11th Circuit Federal Bottom Feeders to tell me that the Individual Mandate was unconstitutional.
Maybe most of you metro/federo-sexuals did though.
Probably the Wingfields of the world need a Federal lawyer’s permission too.

Jack's Fried

August 12th, 2011
2:22 pm

Jack – grow up. You heard something, but obviously you aren’t interested in all the facts. So you will now continue paying MORE for your healthcare because of these “moochers”. Plus the healthcare costs are KILLING our competiveness worldwide. GM spends more on healthcare than steel. You just don’t get it. You will never understand so why should anybody tory to help you understand.


August 12th, 2011
2:26 pm

Kyle, can you answer and tell me why is the USA the only industrialized country without some form of universal health care? We pay more of our GDP on health care, but do not have the best coverage. The problem is free enterprise and capitalistic greed.

So if it is against the Congress mandate to force me into private contracts with insurance, then surely it is against the US and State Constitution to force me to buy car insurance from State Farm.


August 12th, 2011
2:27 pm

So now the case goes to the Supreme Court….I mean, Anthony Kennedy.

If Kagan has to recuse herself from this case and the ruling is 4-4, does the 11th Circuit ruling end up becoming the final say?


August 12th, 2011
2:29 pm

Jack’s Friend: Why is GM paying anything for health care? That’s part of the root problems with the system, the idea that anyone besides you yourself should be responsible for your health care.

USAF Retired

August 12th, 2011
2:31 pm

Nobody said our healthcare system didn’t need some changes…just not federal mandates and what amounts to a socialist, national healthcare system. Obamacare was never the right fix, it was a political power grab at best. What we need is to repeal it and seriously go back to the drawing board and figure out a better plan. That said, I and/or my family have used or had first hand knowledge of healthcare plans all over the world. The quality and availability is unmatched anywhere in the world including and especially Canada and Western Europe. A few small countries have managed to create and maintain good healthcare programs but they in no way would work in a nation the size and as demographically complex as the US. Killing off Obamacare is the first step to getting our own plan improved.


August 12th, 2011
2:34 pm

One part of the legislation, the rest is in tact.

indendent voter

August 12th, 2011
2:41 pm

any healthcare reform that does not address Tort reform…. to cut lawyer/insurance cos… obscene profit……. can’t be effective.. malpractice insurance skyrocketing.. Doctors will leave the profession… but then Owebama… caters to union lobbiests and lawyers

that's goofy

August 12th, 2011
2:42 pm

The ruling today means conservatives will cheer that “rule of law” was upheld. Liberals will complain about activist judges. If the ruling went the other way then conservatives would complain about activist judges.

Can’t wait for it to get to the Supreme Court.

Jack's Fried

August 12th, 2011
2:54 pm

Jimmy62 – opinions without understanding are an abomination. If we could go back to the beginning of industrialization and remove health insurance from employer’s offerings, they wouldn’t be paying for it. But we can’t. Too late. There is a very good reason other some other industrialized countries are kicking our butts – because healthcare is not a part of their business model. But it is provided for their workers much like the roads, water and other infrastructure that the businesses need to be successful. Roads are not a right, either.

Conscious One

August 12th, 2011
2:59 pm

Thousands are lined up in Woodstock today in need for FREE dental care. This is proof that our healthcare system is in need of an overhaul. The court’s ruling is nothing to cheer about:-(

It is ridiculous that health insurance be tied to one’s employer. That model is familiar, but not working very well. What is costly are the legion of the “walking wounded” who do not have basic medical, dental, and vision care needs met; but then must run up medical bills in emergency room services to have their miserable conditions stabilized, instead of much less costly prevetative care.

What a selfish and backward society America is becoming!

Get on with it

August 12th, 2011
3:09 pm

You know Conscious One, that is bull on the dental. Do you know that a dental policy is one of the cheapest you can get. Do you realize that most companies that supply dental to their employees do not pay a penny for it. Its all covered by the employee. A normal policy costs about 35 per month for a family. Now these people lining up are the same people who pay 200 for their cell phone plans and newest phones, same people who run around with name brand expensive tennis shoes but dont ask them to pay for dental insurance because the government will provide.

I am really sick of providing all the extras for the people who care more about the spinning rims and the top of line tennis shoes and cell phones then they do about normal living expenses. Kinda like the lady that the paper inverviewed not to long ago about her electric bill. She might have been more believable if she were not standing right in front of her major big screen tv with a WII hooked up to it and three lines of games for that particular WII. You will find that most people can afford what they WANT but not what they need. Just LET THE GOVERNMENT TAKE CARE OF THOSE NEEDS RIGHT? Im not thinking so…… Not anymore.

say what?

August 12th, 2011
3:12 pm

Conscious One- you are correct.

As liberal as I am, the mandate was WRONG. Guess conservatives are wrong when they paint with a steam roller that all who lean to the left, are leftist socialist Marxist welfare entitlement dependents.HA.


August 12th, 2011
3:12 pm

I guess some are cheering that Free Loaders win again. People that work are tired of paying for others that just choose not to pay their own bills. We need a mandate or the ability to not provide medical care until an insurance card or cash is produced.

USAF Retired

August 12th, 2011
3:14 pm

Nothing backward or selfish about being self reliant. Healthcare has always been available for those that can’t provide for themselves, just because it isn’t the same healthcare that might be available to one who worked, saved and planned isn’t an indication of a backward society. Socialism doesn’t work…no where does it work..been there and seen it first hand! We do need to make some changes in healthcare, but throwing the baby out with the bathwater for the best medical care in the world is daft. Preventive care is always wise, but very few really understand what that means and that it starts at home with proper nutrition, hygiene and safety…again, self reliance…take responsibitly for your own life and welfare.

Tea Party Hobbit

August 12th, 2011
3:19 pm

Jefferson, this is more significant than you think. The mandate requiring a universal “pool” was the primary way they were going to fund the abomination. Honestly I’d rather see a true socialist plan than the monstrousity they came up with. But a better approach would be to fill the gaps with our existing system (of excellent quality at least) using a reform package for Medicare and Medicaid, which need the overhaul anyway.


August 12th, 2011
3:27 pm

Note: The Constitution says what the Supreme Court says it says, nothing more and nothing less.

If the Supreme Court says “No Mandate”, then that is what the Constitution says.

To date the cases in all Circuit Courts have revolved around the Commerce Clause. And to date one Circuit Court says mandate is OK, another says “no mandate” and the third has yet to rule.

The Roberts court is a big supporter of an expanded Commerce Clause. So one would not be surprised if they said OK to the expanded Commerce Clause “mandate”.

But this is also a big “political case” and the Court is not immune to politics.

It will be interesting.


August 12th, 2011
3:31 pm

Repeal obamacare. Impeach hussein obama. Hussein is busy celebrating ramadan and will go on ANOTHER vacation to Camp David next week.


August 12th, 2011
3:49 pm

Sooner or later the light will come on, if you are going to pay health care workers good money there is not enough for corporate profits adminstering it.

I Report (-: You Whine )-: Thee Magnificent!!! mmm, mmmm, mmmmm! Just sayin...

August 12th, 2011
3:54 pm

HOLLAND, Mich. — Aligning himself with a public fed up with economic uncertainty and Washington gridlock, President Barack Obama declared Thursday: “There is nothing wrong with our country. There is something wrong with our politics.” – Urinal

Blah, blah, blah.

Don’t look now, AJC fools, but your clown has been outed.

USAF Retired

August 12th, 2011
4:14 pm

You mean Obama isn’t the Messiah?


August 12th, 2011
4:26 pm

Yeah, there’s something wrong with our country: Cynthia Tucker will be “teaching” college students soon.

Tea Party Hobbit

August 12th, 2011
4:30 pm

From what I understand, and to her credit, CT will be teaching persuasive writing. At least they have not hired her as a history teacher! Her writing skills are top notch and she can be quite persuasive, even if you usually don’t agree with her!

Down in Albany

August 12th, 2011
4:36 pm

What almost no is saying is that ObamaCare does absolutely nothing to control the COST of healthcare. Simply supplying healthcare insurance while it does offset some of the costs to care for the current uninsured, the escalation of cost by, primarily, hospitals is not addressed by this legislation. When you have CEO’s (and CFO’s, VP, Senior VP’s, etc) of “not-for-profit” community hospitals bringing in $1 million annual salaries with guarantees of 2 years severance for being terminated without cause. When hospitals have these magnificent Italian marbled attriums with fountains. Who pays for that? The patients. Anyway, again…insurance does not control COST.


August 12th, 2011
4:38 pm

From the history of the health care reform litigation it is clear that there are different views on the side of the people whose profession is to interpret and apply laws. Therefore, it is rather ridiculous for visitors of this blog to write “educated” opinions on the constitutionality of the current law.
On the other hand, it does not require any deep professional knowledge to realize that the history shows that universal health care is the way of the future, and that it must include some form of compulsory insurance, even if not necessarily for everybody.


August 12th, 2011
4:43 pm

While controlling the health care cost is obviously necessary, it does not follow that a law dealing with health care must reduce the costs. The health care access and health care costs are related but different issues.

Lil' Barry Bailout (Revised Downward)

August 12th, 2011
5:04 pm

Jefferson: Sooner or later the light will come on, if you are going to pay health care workers good money there is not enough for corporate profits adminstering it.

Why wouldn’t your statement also apply to auto manufacturers or grocery stores?

Because your statement is based on ignorance.

Grow up and learn how businesses work. The same advice to your Idiot Messiah.

[...] 11th Circuit Court of Appeals’ ruling Friday that Obamacare’s individual mandate is unconstitutional is only part of the story. The rest of the story, with maybe the biggest impact, is that the court [...]


August 12th, 2011
5:08 pm

Lil' Barry Bailout (Revised Downward)

August 12th, 2011
5:11 pm

Dresden: surely it is against the US and State Constitution to force me to buy car insurance from State Farm.

You are correct. There is no constitutional requirement to buy car insurance, from State Farm or any other provider.


[...] » Kyle Wingfield of the Atlanta Journal-Constitution has good information on the decision and is updating it frequently. He provides this nugget from the 304-page ruling,as legal analysts continue to pour through the lengthy document. 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. [...]

I Report (-: You Whine )-: Thee Magnificent!!! mmm, mmmm, mmmmm! Just sayin...

August 12th, 2011
6:14 pm

It’s gotten so bad for obozo that even the moonbats think they would have been better off with, check this out, Hillary.

Hahahahahahahahahaha, oh my.

The voice of reason & compromise

August 12th, 2011
7:31 pm

:lol: charm it back down their throats

[...] explanation for why the 11th Circuit’s carefully researched and thoroughly argued ruling last week, striking down the individual mandate in Obamacare but leaving the rest of the law intact, makes [...]