August 12, 2011

11th Circuit Court of Appeals rules against the health insurance mandate.

The NYT reports:
"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," the opinion said....

[T]he Atlanta-based court is considered by many observers to be the most pivotal legal battleground yet because it reviewed a sweeping ruling by a Florida judge....

44 comments:

rhhardin said...

The impression is that courts are clueless.

TWM said...

Should have invalidated the whole law, but without the mandate the whole thing collapses anyway. On to the Supremes for a 5-4 win, 5-3 if Kagan recuses.

Kagan recusing - bwaaaaaa, I made myself laugh.

edutcher said...

Let us hold the good thought.

And repeal is excellent.

Revenant said...

This is all moot. We know it is going to the Supreme Court, and we know current judicial opinion is split.

David said...

The is all foreplay.

The big tussle and the gigantic climax is still in the future.

Nothing beats anticipation.

jimbino said...

It's wild to consider that, under PPACA, expatriate Amerikans would be obligated to pay Obamneycare premiums without having any access to Amerikan health care (as it is with expatriate seniors and Medicare now) while undocumented workers in the USSA will continue to pay neither income tax nor Obamneycare premiums, all the while qualifying for the usual emergency-room health care.

What a country!

chickenlittle said...

For the able-bodied uninsured: They could price the healthcare so low (subsidize it) that people would feel stupid not to sign up for it. But where's the break point between what people think should be free versus what they'll pay?

For the sick uninsured: I surmise that they would willingly sign up for it, regardless of ability to pay. No issue here.

For the able-bodied, already insured: Relief for many, whether they choose to go on or off their existing plan.

Bob Ellison said...

It's not a governing of interstate trade. It's a tax. No, wait; it's not a tax; it's a fee. No, not a fee, sorry; it's a...wait a minute here...whatever it is, it's not only not unConstitutional, it's right here in that Constitution; just give me a minute to find it...

chickenlittle said...

jimbino wrote: ...while undocumented workers in the USSA will continue to pay neither income tax nor Obamneycare premiums, all the while qualifying for the usual emergency-room health care.

I suspect that will be the logic behind pushing for total amnesty, or at least for giving enough signal to win reelection in 2012.

Phil 3:14 said...

For God's sake, Get on with it!!

To the Supreme Court

Kirby Olson said...

Plan B.

traditionalguy said...

Foreplay is a necessary part of sexual conquest.

A good job was done by the Atlanta Judges finding that Constitutional thingee contains limits on the Federal Government's tyranny.

Will this mean that the SEC will investigate the Judges for disobedience to King Obama's party?

Richard Dolan said...

So, the petitions for certiorari are due in 90 days. Plaintiffs can seek certiorari and (I suspect) will do so. The Obama Admin may try to slow things down by asking for en banc review.

As for the results in the SCOTUS, I wouldn't assume that the more conservative judges will necessarily line up. The news stories are focusing on the fact that one Clinton-appointed judge voted to invalidate the individual mandate. But they're missing the equally important fact that Judge Marcus (the 11th Circuit dissenter) is a very conservative guy and a Republican. He was originally an AUSA in the EDNY, then later became US Atty in Miami. His appointment to the 11th Circuit by Clinton (after he had been appointed to the SD Fl by Reagan) had to do with a political deal Clinton worked out with the Senate.

It's quite possible that equally conservative justices on the SCOTUS will take the same view as Judge Marcus -- ObamaCare presents political issues best resolved by the political branches. That is, by the way, a principled (and very conservative) position to take on the constitutional issues.

cubanbob said...

One would think that a case of such magnitude involving 26 out of 50 states at the minimum the ruling should have been by the whole appellate court. As for the balance of the ruling that doesn't make any sense. The government argued the bill cannot be severed so what kind of pretzel logic did they use to determine that it can? As for the Medicaid mandate, that is also strange. A state can opt out but the citizens of the state are still compelled to pay the payroll tax without any benefit to the state, hardly a voluntary state of affairs. And probably an impermissible tax as well. Still the ruling could have been worse but one has higher expectations from a federal appeals court than from a state district court. I believe there is another appellate circuit that also has a ruling pending.

Saint Croix said...

What's interesting to me are all the States that have joined this lawsuit. It's got to make Obama a bit nervous.

Alabama
Alaska
Arizona
Colorado
Florida
Georgia
Indiana
Iowa
Kansas
Louisiana
Maine
Michigan
Mississippi
Nebraska
North Dakota
Ohio
Pennsylvania
South Carolina
South Dakota
Texas
Utah
Washington

That's a lot of states that want to dump Obamacare.

PatCA said...

I don't know, Revenant, I'm not a lawyer but when Dems are ruling against Their Chosen One, it seems like they are beginning to feel the hot wind of history in their faces.

I predict SCOTUS will side with us, the good guys!

Saint Croix said...

Virginia filed their lawsuit separately.

SteveR said...

It will take, at a minimum, a veto proof House and Senate. Counting on a 5-4 (or 5-3) SCOTUS decision is not a bet I'd make.

Saint Croix said...

I left off

Wiconsin
Wyoming

And a couple more, cripes. It's a lot of states!

Methadras said...

Any chipping away of this Obamanation of law is a good thing. Take it to that empty suited piece of cow shit. Fuck him, at this point, he's an enemy of my country. I hope he drops dead.

Tim said...

The second best part of this is the ongoing refutation of all those idiot Democrats who said the argument against the constitutionality of the individual mandate was risible on its face.

Lance said...

I thought this bit from the decision was very compelling:
In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health market at all.. . . 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 in their lives. This theory affords no limiting principles in which to confine the Congress’s enumerated power.

So, any chance SCOTUS will revisit/revise Raich and/or Wickard?

Lance said...

To expand on that last point, doesn't Wickard hold exactly what the 11th Circuit finds so objectionable? In Wickard, a farmer was prosecuted by the federal government for growing too much wheat. He wasn't selling the excess, he was using it to feed his family. But the government argued and SCOTUS agreed that by growing the excess wheat and consuming it himself, he affected demand and Congress could thus regulate him.

Seems to me there's a fine line between a farmer who eats his own wheat and a person who chooses not to buy health insurance. If SCOTUS takes up the 11th's argument, it seems they'd have to revisit Wickard at least and probably Raich as well.

Saint Croix said...

It's quite possible that equally conservative justices on the SCOTUS will take the same view as Judge Marcus -- ObamaCare presents political issues best resolved by the political branches.

I think that's unlikely. None of the conservative Justices on the Court are Frankfurter disciples. They're far more like Hugo Black.

Overturning Obamacare on the grounds that it's not a regulation of commerce is entirely in line with their precedents, and the conservative wish to give the commerce clause some sort of limitation.

Besides, overturning it on those grounds would keep the door open to passing it again. Congress can spend anything they want, and they also have unlimited power to tax.

Congress has Constitutional authority to socialize healthcare if they want to. But forcing us to participate is another matter.

Lance said...

Overturning Obamacare on the grounds that it's not a regulation of commerce is entirely in line with their precedents

Orin Kerr thinks otherwise. He thinks Roberts' view of the Necessary and Proper Clause and Kennedy's opinion in U.S. v. Lopez suggest they'll vote to uphold the mandate.

I point this out not because I want the mandate upheld, but because Orin Kerr is a bajillion times smarter than me.

Valentine Smith said...

This is the thread that enables me to identify the lawyers.

And Lance is the humble one.

The exception that proves the rule.

edutcher said...

Saint Croix said...

What's interesting to me are all the States that have joined this lawsuit. It's got to make Obama a bit nervous.

What must scare the Demos even more is the fact that even NY is turning against Little Zero.

Cedarford said...

The principal legal scholar behind the challenge on the individual mandate, Randy Barnett, e-mailed:

“Now that judges appointed by both Democratic and Republican presidents have found the individual insurance mandate to be unconstitutional, the nation’s interest requires the Supreme Court to hear this case next term. Only then would the uncertainty inflicted upon the national economy by this unprecedented and unconstitutional law be lifted. Both the country and the Constitution cannot afford any delay.”

The ongoing damage to the economy and concerning no one wanting to hire new workers while the uncertainty of Obamacare persists, argues for an expedited review.

Terry said...

So the constitutional-law-prof-prez signed a law of doubtful constitutionality, passed by a bare majority of his party in congress using procedural tricks.
Obviously the Tea Party is the villain here.

TWM said...

"This is the thread that enables me to identify the lawyers."

Oh Lord, if still unsure, let me make clear I am anything but, and the better for it.

t-man said...

Richard Dolan -

Questions of federalism are the one place where the judiciary cannot abdicate on the "political question" basis. The political question doctrine is centered on disputes between Congress and the President. If those two branches agree, the Supremacy Clause is a sledgehammer over the States. There must be a judicial determination of when the federal government oversteps its bounds.

Even if Repulican's were able to repeal the legislation following the next election, that doesn't resolve the issue of whether the federal government has the power to enact this or a simlary law in the first place.

PJ said...

Isn't the 11th Circuit's severed cure worse than the disease from a fiscal point of view? All the expense of guaranteed issue and pre-existing conditions with none of the mandate revenue? I don't see how they concluded that the few necessary votes to kill the bill would not have swung over that.

Seven Machos said...

from a fiscal point of view

That's not the Constitution's problem.

PJ said...

I agree with that, Seven, and I'm not suggesting that the court should have severed directly because of the fiscal consequences. I'm suggesting that the court should have found that Congress would not have had the votes to pass the bill because of the fiscal consequences.

Seven Machos said...

I'm suggesting that the court should have found that Congress would not have had the votes to pass the bill because of the fiscal consequences.

Courts don't make those kinds of findings. Courts rule on cases, based on law. In this case, the Commerce Clause supersedes Obamacare, and Obamacare cannot be the law. Alternatively, the opposite.

But no court is going to make the finding you are suggesting.

t-man said...

The serverability part of the Eleventh Circuit's ruling was very weak. It is obvious that some provisions would not have been passed absent the mandate (the government conceded that in the District Court), while other provisions (breaks for nursing mothers) are stand alone. The case should have been remanded to the district court for determination of which parts were severable.


I would guess that the Eleventh Circuit didn't want remand, though, because that would delay Supreme Court review.

Revenant said...

it's not only not unConstitutional, it's right here in that Constitution; just give me a minute to find it...

Check the umbras. It's usually somewhere in the umbras.

SPF Zero said...
This comment has been removed by the author.
PETER V. BELLA said...

Hopefully the SCOTUS will do the right thing and rule against this fiasco.

PETER V. BELLA said...

One q=would think that the so called intelligent people in the legislature would repeal the individual mandate, since a majority of the people- their constituents and voters- are against it.

But there is no intelligence in the legislature. There is no intelligence in the whole US government.

PJ said...

Seven, as I read it, the court decided that one section of Obamacare was inconsistent with the commerce clause. Then they had to decide whether striking down that section should lead to striking down other sections that were themselves constitutional. That issue was discussed in section VII of the opinion, "Severability." The law of severability requires the court to determine whether the Legislature would have enacted the constitutional provisions independently of the unconstitutional provision. That's exactly the "kind of finding" I'm talking about here. Maybe you think Congress would have enacted the guaranteed issue and pre-existing condition provisions even if there had been no individual mandate, but that's just a different opinion about the same "kind of finding," isn't it?

Seven Machos said...

I argued when this thing was passed that, of course, there is severability. Every law has severability. What kind of law is passed without it.

People here have demonstrated to me that this law was passed, on purpose, unseverable.

I don't know the answer, or what the judicial construction will be.

Bob Ellison said...

The White House response is interesting.

"The 11th Circuit Court was wrong because it was just wrong! And we were right. You'll see. You'll all see!"

With Eric Holder running legal discussions, that's as sophisticated as it gets.

Tank said...

The scary part is that there are so many judges who don't think the law is unconstitutional, and it' assumed that 3 or 4 Sup Ct Justices will think it's ok.

What do they think that the gov't is NOT allowed to "regulate." What do they think the gov't is not allowed to tell us to buy or do?