Appeals Court Declares Individual Mandate Unconstitutional

The Eleventh Circuit Court of Appeals on Friday ruled that the individual mandate that is the lifeblood of ObamaCare is unconstitutional. Without this mandate, which requires that nearly all Americans buy health insurance, the entire multi-trillion enterprise essentially collapses of its own weight. As Jazz writes:

The whole reason the mandate’s there in the first place is so that insurers have a big new pool of premiums flowing in to help offset the costs they’ll incur from now having to cover people with preexisting conditions, etc. If that pool disappears, the whole arrangement becomes financially unstable.

Stripped of the mandate, Congress would either have to scale back the other parts of the law so that it can function independently or scrap the law altogether and start over.

The suit was brought by 26 states, nearly all of them led by Republican governors and attorneys general. The Department of Justice is expected to appeal.

The decision, which was 2 to 1 in favor of striking down the individual mandate, marks the first in which a judge appointed by a Democrat has so voted. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to constitute the majority opinion.

Writing for the majority, Judge Dubina opined:

[T]he individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975- page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.

It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, Congress ‘has never required people to buy any good or service as a condition of lawful residence in the United States.’ CBO MANDATE MEMO, supra p.115, at 1. 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.

Some on the left are seeking to make lemonade out of the lemons embodied in this ruling by pointing to a facet of the ruling that allows severability of the individual mandate from the rest of the law. In other words, the law could remain intact except for the requirement that individuals buy health insurance. But as stated earlier, that requirement is the sole pneumatic tube through which cash was to flow into the implementation of the law. Without it, ObamaCare is dead on arrival.

by Howard Portnoy