The New ObamaCare Decision Is Good
The essential thrust of the government’s argument that health care can and must be regulated because it is unique could apply to anything; everything is in some way unique. It was disposed of by the court as follows:
Were we to adopt the “limiting principles” proffered by the government, courts would sit in judgment over every economic mandate issued by Congress, determining whether the level of participation in the underlying market, the amount of cost-shifting, the unpredictability of need, or the strength of the moral imperative were enough to justify the mandate.
But the commerce power does not admit such limitations; rather it “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” If Congress may compel individuals to purchase health insurance from a private company, it may similarly compel the purchase of other products from private industry, regardless of the “unique conditions” the government cites as warrant for Congress’s regulation here.
Moreover, the government’s insistence that we defer to Congress’s fact findings underscores the lack of any judicially enforceable stopping point to the government’s “uniqueness” argument. Presumably, a future Congress similarly would be able to articulate a unique problem requiring a legislative fix that entailed compelling Americans to purchase a certain product from a private company. The government apparently seeks to set the terms of the limiting principles courts should apply, and then asks that we defer to Congress’s judgment about whether those conditions have been met. The Supreme Court has firmly rejected such calls for judicial abdication in the Commerce Clause realm. See Lopez, (“[W]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.”
The court then considered the actual amount of cost-shifting sought to be prevented by the mandate and concluded that it was insufficient to have a substantial impact on interstate commerce. It observed that according to the data in the record, the “cost-shifters” were not all that significant. Summarizing: illegal aliens account for $8.1 billion of the claimed $43 billion in cost-shifting (18.9%); low income persons account for $15 billion (34.8%); and the already insured who do not pay their co-pay amounts account for $3.3 billion (7.6%). These groups, in the aggregate, account for $26.4 billion or 61.3 percent of the $43 billion total. The main culprits are not covered by the mandate. Rather, “healthy individuals who forego purchasing insurance” are.
To help private insurers, the congressional findings acknowledge that the individual mandate seeks to “broaden the health insurance risk pool to include healthy individuals,” to “minimize adverse selection,” to increase “the size of purchasing pools,” and to promote “economies of scale.” The individual mandate forces healthy and voluntarily uninsured individuals to purchase insurance from private insurers and pay premiums now in order to subsidize the private insurers’ costs in covering more unhealthy individuals under the Act’s reforms. Congress sought to mitigate its reforms’ regulatory costs on private insurers by compelling healthy Americans outside the insurance market to enter the private insurance market and buy the insurers’ products. This starkly evinces how the Act is forcing market entry by those outside the market.
Nevertheless, we need not, and do not, rely on the factual disparity between the persons regulated by the individual mandate and the cost-shifting problem. After all, courts “need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.” The government would have this be the end of the constitutional inquiry.
But the government skips important analytical steps. Rational basis review is not triggered by the mere fact of Congress’s invocation of Article I power; rather, the Supreme Court has applied rational basis review to a more specific question under the Commerce Clause: whether Congress has a “rational basis” for concluding that the regulated “activities, when taken in the aggregate, substantially affect interstate commerce.”
Having decided that the Congress lacked a rational basis, the court next addressed the basic and perhaps most important issue, that of federalism. It acknowledged an argument (specious in my view) that if a state can issue an insurance mandate, so can the federal government. It also acknowledged that some states have done so.
But if anything, this gives us greater constitutional concern, not less. Indeed, if the federal government possesses the asserted power to compel individuals to purchase insurance from a private company forever, it may impose such a mandate on individuals in states that have elected not to employ their police power in this manner. . . . [And], when Congress actually operates within its enumerated commerce power, Congress . . . may ultimately supplant the states. When this occurs, a state is no longer permitted to tailor its policy making goals to the specific needs of its citizenry. This is precisely why it is critical that courts preserve constitutional boundaries and ensure that Congress only operates within the proper scope of its enumerated commerce power.
. . . [T]he individual mandate cannot be sustained as a valid exercise of Congress’s power to regulate activities that substantially affect interstate commerce.
Although the court acknowledged that deference to the Congress,
demands that we invalidate a congressional enactment only upon a plain showing that Congress has “exceeded its constitutional bounds” . . . we believe a compelling showing has been made here, and “the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the “other level of Government has tipped the scales too far.”
Showing further deference and restraint, the court disagreed with Judge Vinson’s determination that the insurance mandate cannot be severed from the rest of ObamaCare and must therefore fall along with it. It is interesting that Judge Marcus’ dissent from the invalidation of the individual mandate placed great reliance on its necessity to the overall scheme of ObamaCare. For example, “Congress determined that the individual mandate was essential to the effective implementation of the Act’s insurer regulations,” arguing therefore that as “an essential part of a larger regulation of economic activity” it was necessary and proper to effectuate that larger regulation. This however did not lead Judge Marcus to conclude that the mandate could not be severed and that, with it stricken, ObamaCare itself must generally fall.
This decision is BS. Vinson got it right. There simply is no severability clause, but the 11th maintains there is. Okay, so where is it then, 11th? Where is the severability?
Why did they do this? They have to know there is no severability clause. They have to.
Were they trying to make it easier to keep ObamaCare alive, by just getting rid of the mandates? Were they just trying to salvage part of the Leftist agenda. Were they trying to help Obama by making ObamaCare seem less onerous, by modifying it through the courts?
Or were they trying to focus only on the mandate ruling it out, so that when it reached the Supreme Court, and the Court refused to overturn the 11th’s decision, it could then be challenged based on severability alone, which would surely be won? IOW, were they trying to work the system to get it thrown out, by focusing on just half the vulnerability?
Either way is just chicken****. The mandate is unconstitutional, and there is no severability clause. They should have said so. This thing is doomed. I think the 11th knows it, too. They should have said that, too. Game over.
I liked Judge Vinson’s decision too; without the insurance mandate, ObamaCare probably won’t work and it will be very difficult for the present Congress or a future congress not under Democrat control to rewrite it to make it work. Even the dissenting judge seems to think so.
That said, the principal issue is the constitutionality of the insurance mandate and there the Eleventh Circuit got it right. I had rather the Supreme Court focus exclusively on that issue than get ensnared in severability where, even in the absence of a severability clause, the Court could go either way.
I don’t care for peas and I don’t like the Government trying to force me, under pain of penalty, to buy them.
The 11th Circuit simply deferred to Congress, and technically they were right. This is the proper response when the court lives under precedent because they admit that they do not have all knowledge and there is the possibility that Congress could find a way to accomplish the same goal without the mandate. However, WE know (and the 11th Circuit knows) that it can’t work without the mandate, but the court chose not to create new law out of thin air (like activist courts would) and deferred to Congress to find a way around it. I think it was a genius move on the part of the court… they know that even if Congress could think of a way to get around the mandate, this Congress won’t do it, and the administration can’t amend the bill on the fly without going through Congress. And as Judge Vinson said, besides Congress only the SCOTUS has the power to overturn the entire law. Now the administration has no choice but to take it up for appeal and hope they can buy enough time that the law won’t be overturned right before the election. The bottom line is that the judges decided NOT to be activist (which is a good thing), but instead to carefully lay out their reasons why the law is unconstitutional so they will be included in the appeals, thus giving SCOTUS even more ammunition to act specifically on those reasons and put this bill down before it does any more damage.
Now I find out! I ate the only pea I had from my shell game.
Off to the grocery store.
Is the government more important than the governed? That’s the basic question.
History says yes.
The Founding Fathers said no.
You have a choice. Serfdom or freedom.
Pick one November 2012.
“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.”
Not only is ObamaCare breath-taking in its scope, it raises the logical question: How can I get Congress to mandate that every individual must buy my products and services? (WhooHoo, that would make Recovery Summer 3 something to write home about!)
Over twenty years of dealing with them, I have found lawyers, and their domesticated variety, judges, to be the most venal, corrupt, incompetant jerks we have ever had to deal with. Add dishonest and just plain stupid, and I think you get the picture. Of course, since the nexus of money and power occupy their realm, how can we be surprised? They lie all the live-long day, and will force you to lie, too, if you don’t want to spend the rest of your life in court (or in jail).
Wouldn’t you walk down the street, thinking you’re hot something, if you, for any reason, or no reason at all, could harness the United States of America, including its Seals, Marshalls, Marines, Navy, Army, Nuclear arsenal, and even the dreaded TSA, simply because you can convince a single, stupid judge to agree with your proposition, no matter how preposterous. That’s what we have now for a justice system.
We are using a template of justice, which was defined way back when, when anyone who did something that society considered reprehensible was subject to being made to pay at dawn. Lawyers were frequent victims, since they suck blood for a living, and regularly caused real men to be upset. Two hundred years of this rot has destroyed our system. The definition of “legal” is now what a lawyer, using compliant judges, can make happen.
No wonder Obama is miffed. he thinks of himself as the ultimate lawyer and judge. How dare mere mortals defy him?
Indeed.
I love peas. Hot and buttered, mixed in with mashed potatoes….MMmmmm..MMMmmm!
But really, this health care law stinks on ice. What happens if/when SCOTUS agrees with this ruling?
Well, no matter what happens, it is still going to come down to one vote in the Supreme Court, which is really sad. It’s probably going to turn into a 5 to 4 decision, one way or the other. And to think that a horrible law that is going to affect over 320 million people is going to come down to what one judge thinks is insane. This bill should have been killed in Congress and it just shows you to what lengths the Democrats will go to in order to increase government spending. But if it doesn’t go well in the Supreme Court, then we can try to repeal it after the 2012 elections. People will not stand for this because the era of big government is about to end. And if it doesn’t, we’ll certainly go bankrupt.
Insuring 40 million residents (not necessarily citizens) with the pretense that it would not raise the deficit one dime is a clear and present danger to the economy. Expanding the commerce clause into new and untested arenas threatens the foundations of U.S. rights and laws.
I wonder if one of the first acts of President Perry might be to issue waivers to all states.
Sorry, I say no waivers for blue states. Let them enjoy the fruit of their desires.
They were warned.
There are a lot of ‘Pubbies who were born in blue states by no choice of their own.
I don’t trust Perry any farther than I can pea. He is friends with the Muslim Jidadists. I trust Ron Paul instead.
“The U.S. Court of Appeals for the Eleventh Circuit issued its 301 page decision on ObamaCare…”
Waste of 300 pages. The federal government has no enumerated power to create a national health system, period.
The whole thing is totally unconstitutional.
And, our federal court system is a total joke…always has been.
What, then would you have had the Eleventh Circuit do? Should the Supreme Court affirm the Eleventh Circuit decision, would that be a waste of paper as well?
That we are even discussing this at all shows how fall the Republic has fallen. It ought to be clear as day to anyone who is not in denial that Congress has no business having almost anything at all to do with medical care, let alone having something like Obamacare. The Commerce Clause has all ready been inflated out of all recognition, making a mockery of the rest of the Constitution, especially the 10th amendment. Even a child can understand that if you list certain things that are allowed, and say the rest is not allowed, that interpeting one of the listed allowed things to mean you can do anything you want to is ludicrous. The Commerce Clause was intended to prevent Massachusetts from putting a tariff on goods from Connecticut, etc, and nothing more. Now they claim that if a human activity might effect the sale of something somewhere across state lines, Congress can regulate it. That means they can regulate anything at all, no limits. Why have the rest of the Constitution?
For the last 70 years or so a ‘strict’ interpretation of the Constitution has fallen out of fashion, scoffed at, called ‘extreme’. We’re about to find out that we can’t afford the ‘expansive’ view, as we drive the economy of the Republic into the wall at warp speed. Only a wholesale return to the Constitution has a chance of salvaging us. Following the Constitution would result in massive slashing of Federal bureaucrazies, allowing business to boom, wealth to spread, the poor benefitting from skyrocketing employment and entrepeneur opportunities they long have been denied.
But continue with the vast swathes of unConstitutional agencies, from EPA to OSHA, from Dept’s of Labor to Education, SocSec, Medicare, etc, and this does not end well.
Nearly every problem created by DC would be instantly negated if the 9th & 10th amendments were honored in the halls of congress and sustained by the courts. That is the only way to put the federal government back into the box of the Constitution, along with the repeal of the 16th & 17th amendments.
I have often challenged liberals (who stoutly maintain they’re not Marxists) to tell me just what limitations on the Commerce Clause can keep us from becoming a totally command economy.
I’ve never gotten an answer. Not even an attempt at an answer.
Unless you live in a cave without electricity, clothing or furniture, then everything you do as long as you live “affects interstate commerce.” If the Government can regulate your participation in said commerce, then the Government can force you to do whatever it wants. No limits.
That would be the end of the U.S. as a free society. As the Obama T-shirt example makes clear, an unlimited Commerce Clause could even override the First Amendment’s guarantee of freedom of speech.
As a cave dweller, wouldn’t your decision not to buy electricity affect the utility market?
I think there is a precendent for that.
Pay up.
Exactly.
Electricity crosses state lines, and is therefore under federal control, in accordance with the Constitution.
Refusal to participate in said commerce is causing prices across the country to increase. You must buy “x” number kilowatt hours per year in order that the rates can be effectively regulated by the government.
The most frightening part of Obamacare is not that the Dems rammed it down our throats, but that we have judges who have written opinions stating that it is, in fact, Constitutional. We may debate and argue about all manner of politics, but if Obamacare is Constitutional, there is nothing left to debate– America is over. It will be the legal precedent for anything and everything Congress wants to do to us.
Bankruptcy will put the legal boys into the soup kitchens, where they belong. No amount of twisting will get them out of it.
And just think…..they actually brought it on themselves?
How can these waivers be anything more than bribes?
The first act of the next administration should be to rescind all the waivers. Let’s see the supporters eat their own dog food. Congress can repeal this unconstitutional travesty, or everybody can live with it.
This court was dead wrong in its conclusion that “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.”
Since the days of FDR (and even before that), the commerce clause has been used as a fig leaf for federal government tyranny and creeping socialism. We need to hold our politicians’ feet to the fire until they roll back the ever-more-expansive interpretation of the commerce clause to what our Founders intended it to be.
Yes, that’s a tall order. It involves closing most of the federal agencies that we now have.
If we can’t put this evil federal genie back in the bottle, then it will be impossible to curb federal spending and the ever-increasing national debt.
Over at National Review Online, there is an excellent detailed discussion on the courts decision:
http://www.nationalreview.com/articles/274693/eleventh-circuit-takes-aim-obamacare-avik-roy?page=1
If ObamaCare is Constitutional, then Congress can mandate that every citizen pays into a fund to insure against loss of employment, loss of housing, food, clothing, transportation, and communication. They only need to enact legislation to cover all aspects of existence as a citizen in America.
BUT, NOT EVERY PERSON WOULD BE COVERED; ANYONE IN THE U.S. THAT IS HERE ON A VISA, ANY ALIENS, (LEGAL OR ILLEGAL), AND ANYONE IN A CATEGORY THAT CANNOT AFFORD HEALTH INSURANCE, IS EXEMPT.
That means that the people that CAN afford to pay, will be paying for all the above individuals that cannot or will not pay into the health care fund.
Can everybody see that our borders will be over run with people seeking free health care, and Congress saying they are accommodating a “Humanitarian Crisis” with the United States Health Care System?
ObamaCare will only make the healthcare problem we now have, worse. And enable Congress to stuff their coffers with the money of every citizen for their own enrichment and political agenda.
ObamaCare would be fertilizing government growth on an exponential scale, without any limitations.
And now we know, crystal clear, what it means to be fundamentally transformed!
And the establishment of a single Party Government.
Sorry Mr. Miller;
I did not intend to denigrate your essay in any way. It’s just that I like to read as much as I can about a subject to understand it as completely as possible.
I’m sure you understand the importance of this intent. And this legislation requires a lot of research, as I’m sure you have invested.
Thank you, sir.
I agree for the most part with the National Review article. The Eleventh Circuit was right and, I think, provided an excellent record for Supreme Court to review. I agree with this observation, and hope it is correct in its conclusion:
We shall see, and I hope before the elections next year.
Of course, the Obama administration could have agreed to “fast tracking” of the appeal, since it is a foregone conclusion that it will land on the front steps of SCOTUS. But, to the leftists, the ends justify the means, and they are well aware that Scalia and Kennedy are both 75.
They need one more of Obama’s far left appointees to make Obamacare constitutional. They are just one leftist away from transforming America.
Braindead leftist mantras for the 2012 campaign:
“Obama…the messiah…the ‘Prince of Peas’”.
“Obama the Nobel Laureate, winner of the coveted Peas Prize”.
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