Category Archives: healthcare reform

“Unconstitutional,” says the 11th Circuit.


The news making its way through the legal blogosphere, and the online news outlets, is that the 11th Circuit has ruled the individual mandate part of the Patient Protection and Affordable Care Act (the “Act”) is unconstitutional.

Let me underscore that: only the individual mandate was found unconstitutional. The rest of the law has been, for now, left untouched.

The Washington Post called it one of the “most significant legal setbacks to the Obama administration’s health-care overhaul.”

If  you’re short on time, read at least the excerpts of the 2-1 decision  (of a very lengthy opinion) over at the Volokh Conspiracy. In short the Act is:

[…] the individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the Taxing and Spending Clause. The mandate is denominated as a penalty in the Act itself, and the legislative history and relevant case law confirm this reading of its function.

Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.

Etc, etc…and, here’s the part the right will love:

This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. “

Too bad this didn’t come out yesterday. The Iowa Republican debate would have been that much more juicy with the ruling hanging in the air, even with the Supreme Court still in the Act’s future.

If  you have more time, here are a few more commentaries you might look at:

From Utah Political Summary’s Curt Bentley:

One of the more odd things about the majority opinion — at least in my humble opinion — is its use of an overinclusiveness argument.  Over/underinclusiveness is a consideration in individual rights cases, but, in my opinion, has no real role to play when it comes to evaluating a Congressional action under the Commerce Clause.  The over/underinclusiveness analysis is designed to get at the sincerity of a legislature’s expressed motivations.  For example, if a legislature regulates more broadly (or narrowly) than necessary to solve a particular problem, one can infer that it may be dislike for a certain group, rather than a desire to solve the stated problem, that motivates the legislature action.

Jonathan Turley, expressing concerns about federalism issue the Act affects opined that

I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.

In other words, if the feds can do this, what can’t they do? (And, I would add, what does that mean for the 10th Amendment?

Ilya Somin, also at Volokh, noted that this wasn’t a partisan decision:

Significantly, Judge Frank Hull, a Clinton appointee has now become the first Democratic-appointed judge to vote to strike down the mandate, balancing Republican Sixth Circuit Judge Jeffrey Sutton who voted to uphold it. The decision further undermines claims that the individual mandate suit is a sure loser that goes against a supposed expert consensus that the mandate is clearly constitutional.

Jonathan Adler says “Hear, hear!

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Here are the facts: you decide what they mean.

From the Washington Post, a comparison of budget proposals and their effect on US debt.

From the Washington Post, a comparison of budget proposals and their effect on the US deficit.

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Next battle in the Affordable Healthcare Act drama? Administrative Rulemaking.

If you thought the big fight over health care reform was last year with the passage of the Affordable Care Act (the “ACA”), or in the courts over its constitutionality, then think again.

Something every bit as big and as important is coming, yet.

Don’t get me wrong. The passage of the ACA was a serious battle and the law will still end up before the Supreme Court before all is done. But now that the law has been passed, and unless the Supremes decide it’s unconstitutional, there looms another battle, every bit as important and perhaps even more so. Continue reading

“Do what I say (pass my budget), not what I do (ignore your budget).”

Barack Obama - Caricature

President Barack Obama, Adult-in-Chief. Image by DonkeyHotey via Flickr


Our federal government is on the verge of shutting down. And President Obama wants Congressional Republicans to do what he says (pass his budget), not what he does (ignore their budget).

The United States government doesn’t have a budget for fiscal year 2011, yet. If it doesn’t pass one by Friday, the government will shut down. This means, as others have pointed out, that we may see something like what happened in 1995 and 1996:

[I]t actually cost the government money in back wages, lost revenue from shut-down national parks and the local economies and businesses surrounding those parks. Not all government workers go on a mandatory vacation, either. Essential staff still stay on duty – FBI and TSA workers, VA hospitals and military bases stay open, as would the US Postal Service, the prez and his employees and all members of Congress.

So, naturally,with a shutdown threatening due to Congress’ and the President’s inability to work out a compromise, what do our elected leaders do? Get down to the thumb tacks, pound out a compromise that moves our country on the path to get out of debt, and works to lighten the load on Americans?

Nope. They trade insults.

President Barack Obama on Tuesday called on congressional leaders – especially Speaker John Boehner (R-Ohio) – to act like “grown-ups” and avert a government shutdown after they made no apparent progress in reaching a budget agreement at a White House meeting earlier in the day.

In response, Congressional Republicans said that they were going to take their toys and go home…

Oh, wait. No they didn’t. Rather, they released a plan to cut $6.2 trillion out of the budget over the next four years, including reducing the deficit by $4.4 trillion, a number three times the Administration’s (and, consequently, the amount that the Administration has added to the bottom line over the last few years).

Naturally, with Rep.Paul Ryan wonkishly talking policy and throwing around statistics, numbers, and budgets that save money, maintain retirement benefits, decrease our federal deficit, and, well, make sense, an insult was the best the President could come up with on the spur of the moment. After all, the upstart Congressman from Wisconsin is making him look bad.

Ironically, Rep. Ryan’s plan isn’t even considered to be that great. It’s just better than the President’s.

Politics is the realm of the possible, blah blah. Only in a government situation where we’re facing a shutdown on Friday and a debt limit squeeze around the same time – after a decade of completely bipartisan raids on fiscal sanity – can Ryan’s plan be considered the realistic plan.

It’s just better than the alternative.

From there, and by “there” I mean “a plan that cuts the deficit and salvages the future for our children,” the President decided to pull out the big guns: he accused the Republicans of partisanship because they want to include in the budget cuts cutting off funding for a few of the Golden Calves of the political left (Planned Parenthood, EPA, etc).

We can debate abortion and environmental regulation later. Right now, if we don’t get our fiscal house in order, it may not matter whether Planned Parenthood and the EPA keep federal handouts or funding, because entitlements are going to take over the budget completely.

MEANWHILE, in other news, the adults are busy coordinating President Obama’s reelection campaign…

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The Commerce Clause argument in Virginia v. Sebelius, among others

Yesterday, the headlines shouted that individual mandate of the Affordable Health Care for America Act (let’s just call it “the Act” for short) was found unconstitutional by a federal court in Virginia. (see my short post on it here) Partisan critics of the ruling were quick to point out that there have already been two cases upholding it; partisan supporters were just as quick to note that this is the first substantial ruling on the act.

After a brief reading of the opinion, here are a few quotes from it and a couple of thoughts:

The Obama Administration‘s arguments in support the Act fall can be boiled down to this: Congress was within its powers to pass the Act because it acted under its power to regulate interstate commerce. To pick that apart, the Administration is arguing that Congress has the right to regulate activities that in the aggregate “substantially affect” interstate commerce. The Administration is relying upon aggregation theory, says Judge Hudson:

“…which is conceptually based on hypothesis that the sum of individual decisions to participate or not in the health insurance market has a critical collective effect on interstate commerce.”

In other words, each of us make enough decisions on health care that all taken together it is enough to affect interstate commerce. Under the Commerce Clause argument, the Minimum Essential Coverage Provision–what is more commonly known as the “individual mandate“– is necessary to make sure that the program of reforms in other areas work. In essence, if not everyone is paying into the system, then there won’t be enough people paying in to support the sick and poor that cannot pay for the benefits of health care. The dysfunctional system cannot be reformed if every person does not participate because, well, to put it simply–it’ll cost too much. So, to sum up the argument, since Congress has the power to regulate healthcare under the Commerce Clause, it also has the power under the Necessary and Proper Clause to make the regulations necessary.

Judge Hudson notes that although the Necessary and Proper Clause “vests Congress with broad authority to exercise means […] to implement legislation, it is not without limitation.” This is an interesting, and perhaps understated commentary, on what many, including Speaker Pelosi, see as the definition of the Necessary and Proper Clause. It is an unenumerated power, but there are still limits. The means to accomplish the end must be “rationally related to the implementation of a constitutionallyenumerated power, but it must not violate an independent constitutional prohibition.” And here is the crux of the Virginia assault on the Act; it is a violation that “offends a fundamental restriction” on the Commerce Clause powers.

Central to the Commerce Clause is that it relates to economic activity. Can the government compel an unwilling person to perform an involuntary activity? Previous cases that the Administration cited dealt with individuals who grew wheat or cannabis and thereby voluntarily inserted themselves in the stream of interstate commerce. Here, however, the individual mandate compels a person to do an involuntary act, buy health insurance, and thereby become subject to the Commerce Clause. Because this goes beyond the bounds of the Commerce Clause, Congress is outside of its ability to use the Necessary and Proper powers to force the purchase. Congress can use its authority to pass constitutional laws; outside those bounds its powers are “bridled.” Quoting Chief Justice Marshall,

[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.

And thereby is why Judge Hudson ruled the individual mandate of the Act unconstitutional. As laudable as were the intentions of Congress in passing the Act, “the legislative process must still operate within constitutional bounds. Salutatory goals and creative drafting have never been sufficient to offset an absence of enumerated powers. And, my favorite quote: “Congressional findings, no matter how extensive, are insufficient to enlarge the Commerce Clause powers of Congress.”

What are those boundaries? Judge Hudson cites case law that limits Congressional powers under the Commerce Clause to subject matter that is economic in nature and voluntary activity. However, despite arguments by the Administration that everyone will at some point in their life need healthcare of some sort, this was the bridge too far for the Judge.

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individuals to involuntarily enter the stream of commerce by purchasing a commodity in the private market.

Because it is not voluntary, the government cannot require individuals to make a purchase, to participate in the market.  Ironically, this seems to be the very lynch pin upon which the entire scheme relies–without participation, voluntary or otherwise, of healthy individuals paying into healthcare, the government will be unable to pay for the costs of covering the poor and sick.

Interestingly, critics are attacking Judge Hudson’s interpretation of the Necessary and Proper Clause powers. See their discussion here. Others suggest that Judge Hudson is writing for Justice Scalia, and that it is a better opinion than the critics are giving him credit for. “Nonetheless, once read in light of Scalia’s concurring opinion in Raich, Judge Hudson’s analysis is considerably more coherent that his critics allow.”

There are other arguments in the case, including a tax argument that Judge Hudson calls “simplistic.” (He also refers to the precedent it cites as “dicta,” a slap at the value of the authority the Administration cites).  I thought the Commerce Clause argument, however, was the most interesting, not to mention the most important.

A last and important element of the opinion is that of the severability of the individual mandate clause from the rest of the Act. In other words: can the rest of the Act survive even though the individual mandate is unconstitutional? In this case, because it is difficult for the court to determine whether Congress intended that the rest of the Act to survive the invalidity of any single clause, the Judge ruled only on the section (1501 in this case, if you were wondering) is invalid and the rest of the Act, as it is currently unchallenged, survives.

Read the opinion here.