On Friday August 12, a bipartisan three-judge panel of the U.S. Eleventh Circuit Court of Appeals in Atlanta ruled that the “individual mandate” to purchase health insurance in the Patient Protection and Affordable Care Act (PPACA), also known as ObamaCare, is unconstitutional. The carefully worded and thorough 300+ page set of opinions may be a bit mind-numbing, but they are a joy to read for those of us who think the words of the Constitution actually mean something beyond whatever an activist Congress and President might want them to mean.
An individual mandate is a requirement by the government that certain individual citizens purchase or otherwise obtain a good or service. In the case of ObamaCare, the individual mandate requires that most US citizens will have to buy health insurance policies from private companies, whether they want to or not. It is only the second time in our history that the individual mandate was used, the first being the Militia Acts of 1792 which was never enforced.
This recent decision by the Eleventh Circuit Court is very significant for several reasons. First, it all but guarantees that the Supreme Court will hear the case. In fact, the High Court will likely hear the case in its next term which starts on October 3, with a decision likely to be handed down by the end of June 2012. Although the Obama administration has an option to ask the full Eleventh Circuit to rehear the case, that is unlikely to succeed for a variety of reasons.
Second, the Eleventh Circuit’s decision puts to rest concerns that court rulings on ObamaCare would be very partisan in nature, in which Republican-appointed judges rule one way, and Democratic-appointed judges rule another. The latest decision was co-authored by Judge Frank Hull, a Clinton appointee both to the district court and the court of appeals. Given the fact that the decision was bipartisan in nature, and the fact that 28 states are challenging the constitutionality of the individual mandate, the Supreme Court now can hardly refuse to hear the case.
The Eleventh Circuit’s decision was very clear and unambiguous. Here is a sample of the language in the decision:
“[T]he 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….
The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.”
You can’t get much clearer than that! More than merely a judgment, the decision is a persuasive and tightly reasoned affirmation of our constitutional structure, one that may even sway the high court’s liberal wing in its concern for liberty and political accountability. Barring a big surprise, the individual mandate in ObamaCare will be struck down by the High Court most likely within the next year.
In short, the Obama administration has lost its battle to delay review of the individual mandate until after the 2012 election. After over a year of delaying tactics, the Obama Administration has no more options to stall the constitutional end-game for the individual mandate. Some sources I read expect that the Supreme Court will begin arguments next spring just as the presidential election campaign begins to ramp up.
Fortunately or unfortunately (depending on your point of view), the Eleventh Circuit’s August 12 decision did NOT go so far as to strike down ObamaCare in its entirety. The decision dealt only with the individual mandate. Some suggest that the Eleventh Circuit judges may have felt that a decision to strike down ObamaCare altogether should not be made in a lower court. But there is no compelling reason to believe that the Supreme Court will go beyond the individual mandate either.
An argument can be made that if you amputate the individual mandate, then ObamaCare is more or less gutted. And that could be true. If people are not legally required to purchase health insurance, then it is pretty much a given that most younger people won’t buy it. If younger, healthier people don’t join the pool of insureds, healthcare premiums would almost certainly ratchet higher.
For those who want to see ObamaCare struck down in its entirety, the August 12 decision by the Eleventh Circuit is a step in the right direction that will likely be upheld by the Supreme Court next year. Yet if ObamaCare is to be struck down altogether, it will very likely require that a Republican be in the White and the GOP has the majority in both houses of Congress. That’s a tall order.
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