FAIL: Another Judge Finds ObamaCare Unconstitutional

On September 13th, Judge Christopher C. Conner of the federal district court for the Middle District of Pennsylvania in Goudy-Bachman et al v. HHS held the mandatory medical insurance provisions of ObamaCare to be beyond the powers of the Congress under the Commerce Clause, Article I Section 8 of the Constitution. Somehow, it just didn't work out too well.

It's a lot of work and often there is lots of pressure to get things done right now. However, perhaps the members of Congress should have read it before passing it.

As an introductory matter, Judge Conner noted,

I emphasize, as Judge Vinson emphasized in Florida v. U.S. Department of Health & Human Services, that this case is not about whether the Health Care Act merely treats the symptoms or cures the disease which has so clearly afflicted our health care system. Nor is it about the exhaustive efforts of Congress to document and to project the increasing costs of health care services or to pinpoint discriminatory practices associated with preexisting conditions. Rather, this case concerns the precise parameters of Congress’s enumerated authority under the Commerce Clause of the United States Constitution. Specifically, the issue is whether Congress can invoke its Commerce Clause power to compel individuals to buy insurance as a condition of lawful citizenship or residency. The court concludes that it cannot. The power to regulate interstate commerce does not subsume the power to dictate a lifetime financial commitment to health insurance coverage. Without judicially enforceable limits, the constitutional blessing of the minimum coverage provision would effectively sanction Congress’s exercise of police power under the auspices of the Commerce Clause, jeopardizing the integrity of our dual sovereignty conditions. (internal citations here and in other quotations generally omitted)

The judge applied the traditionally rigorous standard in evaluating a facial challenge to a statute in the posture of ObamaCare, viz, that the plaintiffs "must establish that 'no set of circumstances exist under which the Act would be valid.'" He reviewed relevant Supreme Court precedent and the split in federal court decisions on the matter and summarized his agreements and disagreements with the recent holdings by the Fourth, Sixth, and Eleventh Circuits.

The Fourth Circuit had dismissed challenges to ObamaCare on procedural grounds. However, Judge Conner noted that a concurring judge there had opined,

Both parties have cited extensively to previous Supreme Court opinions defining the scope of the Commerce Clause. Economic mandates such as the one contained in the Act are so unprecedented, however, that the government has been unable . . . to point this Court to Supreme Court precedent that addresses their constitutionality. . . . What the Court has never done is interpret the Commerce Clause to allow Congress to dictate the financial decision of Americans through an economic mandate.

The Sixth Circuit had found no viable distinction for Commerce Clause purposes as between economic activity and inactivity and, finding that nearly everyone at some time or other uses health care, a market with "few if any" parallels, it upheld the individual mandate.

The Eleventh Circuit had found the mandate "woefully overinclusive" and rejected arguments that it is constitutional. Judge Conner stated,

after a review of Commerce Clause jurisprudence, the unprecedented nature of the individual mandate, its broad scope and the congressional findings supporting it, the court concluded that the individual mandate embodied no limits, and exceeded Congress’s Commerce Clause powers. For the Eleventh Circuit, “[t]he 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.” The court therefore affirmed the district court in striking down the individual mandate as unconstitutional.

Judge Conner disagreed with the decision by Judge Vinson in Florida and the majority in the Eleventh Circuit that

if affirmed, an expanded commerce power would open a Pandora’s box of nefarious mandates limited only by the confines of a legislative majority.

The consequences of an expanded commerce power are not so dire. First,the notion that Congress could compel the consumption of broccoli . . . (“Congress could require that people buy and consume broccoli at regular intervals . . . .”), or apples, for that matter, is simply incorrect.

Well, some hamsters like broccoli.

Judge Conner observed that Supreme Court precedent would prevent a broccoli or similar mandate and that

the truly unique factual circumstances of this case would necessarily render any holding limited. (“Upholding the mandate under the particular circumstances of this case would do little to pave the way for future congressional mandates that address wholly distinct problems that may arise in powerfully different contexts.”). Finally, an informed electorate would not countenance frivolous mandates.

As to the informed electorate, he may be correct. However, ObamaCare was passed on the cusp of the 2010 congressional elections and, despite the widespread displeasure with which it is viewed, the current Congress has done substantially nothing to defund or repeal it. Perhaps following the 2012 elections the "informed electorate" will speak with sufficient volume and vigor to make one or the other happen. That's possible.  According to an AP/National Constitution Center poll on September 13th,

Some 82 percent of those surveyed said the federal government should not have the power to require Americans to buy health care insurance. Fully 95 percent of Republicans polled agreed. But even more startling was the fact that 87 percent of independent voters — those who truly hold the key to any presidential victory — said government should have no right to require health insurance.

Maybe unicorns are on the way to extinction.

Although Judge Conner rejected both the uniqueness argument and the litany of Commerce Clause horribles which he deemed unlikely to ensue, he found "that the extension of Commerce Clause power to the pre-transaction stage would eliminate 'judicially enforceable boundaries'” and that the Supreme Court had never gone so far as to permit regulation under the Commerce Clause to extend to that stage. The anticipatory nature of the ObamaCare mandate requires nearly everyone, before using health care and before declining to pay for it, to make government sanctioned preparations for payment via government approved insurance. This was, for Judge Conner, its fatal flaw because the Supreme Court has never considered, much less blessed, such a scheme.

This court’s interpretation of existing precedent ... leads the court to the conclusion that the Supreme Court would not construe the Commerce power to have such expansive reach. The extension of the Commerce Clause in the manner the government suggests is unsupported by precedent and therefore beyond the scope of this court’s proper function to grant.

Judge Conner also rejected the government's argument based on the "necessary and proper" clause of Article I because the insurance mandate is not necessary to achieve the stated congressional goals of eliminating "free riders" who receive medical care for nothing and of keeping insurance companies from going broke and threatening market stability. Congress could simply use its powers to tax and spend to accomplish those objectives without expanding the reach of the Commerce Clause.

If . . . the problem lies in Congress’s inability to secure majority support for such action . . . then perhaps the crisis is not sufficiently acute for appropriate congressional resolution or, alternatively, there are less burdensome options yet to be pursued. This is a conundrum that is Congress’s to resolve.

Hence, he concluded that the matter must be resolved by the Supreme Court rather than at a lower level:

[T]his Court’s ratio decidendi is straight forward: Heretofore, the Supreme Court has never sanctioned, under the auspices of the Commerce Clause, the enactment of a broad scale economic mandate in anticipation of a probable but uncertain future transaction. The Supreme Court’s Commerce Clause jurisprudence does not lend itself to such an expansive interpretation. Until the Supreme Court interprets the commerce power to permit these anticipatory mandates, I am bound by stare decisis to conclude that Section 5000A is unconstitutional.

The court next turned to the severability of the remainder of ObamaCare.

Indisputably, the Patient Protection and Affordable Care Act, as amended, is a massive piece of legislation. Addressing severability with respect to each and every provision would be a immense undertaking, and ultimately speculative at best.

Judge Vinson had declined to do exactly that as well. Noting that it would be improper for him to attempt a statutory rewrite, he held that the entire thing must fall. Judge Connor went the other way and with one exception severed the remainder of ObamaCare and permitted it to stand. In view of the government's concession that the requirement that insurance companies insure all comers without regard to preexisting conditions must stand or fall with the individual mandate, Judge Conner severed the unconstitutional individual mandate as well as the "all comers" provisions.

Judge Conner's decision takes a well reasoned albeit minimalist approach to the function of inferior courts. From a visceral standpoint, it is less satisfying than Judge Vinson's total rejection of ObamaCare, recently vacated on procedural grounds. However, it clearly recognizes that the entire matter will ultimately be decided by the Supreme Court, as it must be.

While unlikely, maybe the Supreme Court justices could take some useful hints from this: