Political Animal


August 12, 2011 1:55 PM 11th Circuit rules against health care mandate

By Steve Benen

Earlier this summer, the 6th Circuit Court of Appeals ruled that the Affordable Care Act is perfectly constitutional and the conservative arguments related to the individual mandate are bunk. Today, in keeping with the way this process has unfolded from the beginning, the 11th Circuit reached the opposite conclusion.

A U.S. appeals court ruled Friday that President Barack Obama’s healthcare law requiring Americans to buy healthcare insurance or face a penalty was unconstitutional, a blow to the White House.

The U.S. Appeals Court for the 11th Circuit, based in Atlanta, found that Congress exceeded its authority by requiring Americans to buy coverage, but also ruled that the rest of the wide-ranging law could remain in effect.

That last part is of particular interest. The 11th Circuit was hearing an appeal of the ridiculous Vinson ruling, which raised doubts about the “severability” of the mandate provision from the rest of the law. Today’s appeals court ruling (pdf) effectively found that the mandate is a problem, but the rest of the law is fine.

The 11th Circuit is generally considered one of the nation’s most conservative, and today’s ruling was split, two juges to one.

For those keeping score at home, there were five federal district courts to rule on the ACA on the merits, three sided with the law’s constitutionality and two sided against it. There are now two federal appeals court rulings, and they’re split one to one.

With the 6th and 11th circuits in conflict, there is now no real doubt that the Supreme Court will have to hear the case. We can probably expect a ruling next June — about five months before the presidential election.

Steve Benen is a contributing writer to the Washington Monthly, joining the publication in August, 2008 as chief blogger for the Washington Monthly blog, Political Animal.


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  • just bill on August 12, 2011 2:02 PM:

    we can pretty well predict what the supreme court will decide. damn!

  • T2 on August 12, 2011 2:04 PM:

    gee, what great timing. I bet the SC finds a way to delay a bit, get it closer to mid-October before their 5-4 ruling that its unconstitutional. That way it will be fresh in everyone's mind on election day, and will give Rick Perry a couple weeks for campaign ads saying "See, I told you Obama was trying to subvert the Constitution".

  • martin on August 12, 2011 2:05 PM:

    Hmmm, Joel Dubina is one of those "good" Republicans, not the crazies they breed now. It not surprising her would rule against the mandate, but I'm sure he did it on narrow grounds. On to appeal.

    His daughter, Rep Martha Roby is trying her best to be one of the crazies, but doesn't seem to really have her heart in it.

  • Steve LaBonne on August 12, 2011 2:06 PM:

    Works for me, because the new decision also affirmed the severability of the mandate from the rest of the law. Let the insurance companies eat the new regulations without getting the profit-enhancing mandate they craved. If that drives them out of business faster, good.

  • c u n d gulag on August 12, 2011 2:06 PM:

    Ok, so someone explain this to me.

    How the Hell is THIS UNconstitutional?

    It "found that Congress exceeded its authority by requiring Americans to buy coverage."

    Then what the Hell is Medicare?
    It's not required?
    What is it? Voluntary?

    Maybe I'm stupid, but the reason for this decision makes no sense at all.

    I'm going to ga and read up on this.

  • pol on August 12, 2011 2:08 PM:

    Does this mean Mitt's health care law is unconstitutional, too?

  • mcc on August 12, 2011 2:15 PM:

    I've only gotten to read part of this decision, but it looks ridiculous and seemingly impossible to uphold. The thing that interests me about conservative attempts to overturn the mandate is you can't smack down the mandate without fundamentally altering Congress's traditional powers on levying income taxes. The mandate is just an income tax that applies differently to people based on their behavior-- you already pay lower income taxes if you have a child, buy a house, or buy an energy-efficient air conditioner. The mandate has you pay lower income taxes if you bought health insurance.

    If you look at this decision, they actually say Congress can't use its tax power because the word "penalty" is used in the act. So this is unconstitutional not because of what it does, but because of how Congress worded the bill. So let's say Congress hadn't originally written the bill so that it raises your taxes by $750/yr if you have the income to buy health insurance but don't, and then used the word "penalty" in the bill to describe this-- let's say they had raised the taxes of EVERYONE above the poverty line by $750 and then given something the bill describes as a $750 tax "incentive" or a tax "break" to everyone who bought health insurance. All of a sudden then it would be like the energy efficient appliance tax credit and suddenly constitutional. So we can imagine here two provisions of law which do the exact same thing, but we describe it differently so suddenly as the 11th circuit sees things one is constitutional and one is not.

    Of course maybe rewording wouldn't be enough-- they say the "legislative history" shows Congress was thinking of the mandate as a penalty. So they could maybe re-pass the mandate, describing it as an incentive rather than a penalty, and too bad! Congress can reward you for buying houses or air conditioners, but at some point in the past someone in Congress was thinking as the health care mandate as punitive, so bam, Congress has lost the ability to reward you for buying health insurance.

    How does ANY of this make sense? And how do you uphold this without suddenly having to rip out enormous quantities of the tax code and permanently alter the way Congress writes tax bills in future?

    Conservative judicial activists once again show themselves almost totally indifferent to how the law has worked in the past.

  • Leoguy on August 12, 2011 2:27 PM:

    I assume you'll follow up with your ongoing survey of media coverage of these rulings. For example, the Houston Chronicle online has this large headline: COURT STOPS HEALTH INSURANCE REQUIREMENT

  • neil b on August 12, 2011 2:28 PM:

    With different courts ruling different ways, how does that all hash out until/if reaches SCOTUS where the gang of five corporate stooges hold sway? Which reminds me, the corporations actually wanted the mandate. (What will they do to protect that? Maybe they don't really pull all the strings.) Which could have been avoided by expanding public coverage à la Medicare etc. But still, good luck to Obama getting this sorted in his favor.

    Haha, craptcha "liceland" - where we'll end up with our crappy health "care" "system" ...

  • mcc on August 12, 2011 2:33 PM:

    neil b: It doesn't really matter because the mandate doesn't begin to take effect until... 2014, I believe? And it's phased in so it isn't really in place until 2016. One "advantage" of the long delays before different provisions of the health care act actually kick in is that any legal wrangling should be long over by the time things actually get implemented.

  • neil b on August 12, 2011 2:34 PM:

    C u n d gulag, Congress has powers to levy taxes and provide services thereof, whether or not the citizens wanted that as individuals (their check on all that is supposed to be the Constitution + elections.) Making people buy from companies is different, and frankly I'm not convinced it really is OK, as a fair thinker and not trying to help the right wing (they're not always wrong esp. if you detach from their motivations to just the bare question.)

    You see, as craptcha shows me, I am so ADVANCED.

  • mcc on August 12, 2011 2:41 PM:

    "Congress has powers to levy taxes and provide services thereof, whether or not the citizens wanted that as individuals"

    But not, apparently, a $750/year tax on people who don't have health insurance (aka the "mandate") money from which goes to fund subsidies for people who want health insurance but can't afford it?

  • Lance on August 12, 2011 2:49 PM:

    Well, I lose. I didn't expect ANY Appealet court to claim any part of the law unconstitutional.

    So, the question is, does the Supreme Court majority belong to the Tea Party crazies or to their Corporate overlords?

    Want to guess?

  • Bernard HP Gilroy on August 12, 2011 3:04 PM:

    The timing of the eventual Supreme Court decision will be interesting. We know that the Tea Party will be out in force in 2012 November in part due to the ACA. Here's the thing: It's probably impossible to raise their turnout any more. They've shown they're pretty easily riled up, and the prospect of Obama with another 4 years will get most of them to the polls no matter what the Court says.

    But imagine if the Court strikes down the ACA. That might just be what fires up the Democratic base -- because now it will have to be done over. Not only that, but it puts single-payer back on the table front and center. For ardent liberals it would (or could be) a do-over to tackle health care and get it right. And five months is just about the right time scale to get everyone fired up and at the polls.

    It's going to be interesting. Assuming of course that the justices don't punt and push off the decision until after the election.

  • square1 on August 12, 2011 4:13 PM:

    I've said it before and I'll say it again. Be careful what you wish for.

    One of the cliches about liberals is that they do not appreciate the unintended negative consequences of their well-intentioned policies. In this case, the cliche is proving true.

    The Constitutional argument in support of the individual mandate is largely policy agnostic. It can be embraced to support virtually ANYTHING.

    If conservatives ultimately lose this battle, as seems likely, I can 100% guarantee you that Republicans will quickly turn around, run with the idea, and ram it so far up liberals' asses that liberals will be screaming for mercy.

    It is not particularly difficult to imagine Republicans coming up with all sorts of wonderful new mandates:

    * To buy an anti-abortion DVD in order to receive an abortion;

    * To buy a Rush Limbaugh book;

    * To buy a minimum quantity of groceries and household goods each month from Walmart.

    Congratulations, liberals! You are about to voluntarily give up your right not to buy any damn product or service that a corrupt politician wants you to purchase.

  • Doug on August 12, 2011 10:16 PM:

    "Be careful what you wish for." square1 @ 4:13 PM.

    Love the statement: "The Constitutional argument in support of the individual mandate is largely policy agnostic." Which, of course, completely demolishes your less-than-convincing scare tactics. Also, don't you mean "neutral", rather than "agnostic"?
    More importantly, if you really believe that the ACA mandate opens the door to being forced to buy anti-abortion cd's, Rush Limbaugh's so-called books, or groceries at Walmart, then I can only conclude you've allowed your dislike of President Obama to overwhelm any other critical facilities you possess.
    Shall we go through the steps again?
    1) Health care insurance in a NATION-WIDE business, composed of dozens, or more, individual companies that provide HCI to citizens.
    2) The HCI companies are not individually confined solely to ONE state, their services are provided across state boundaries.
    3) The costs of providing health care to those who are uninsured are being paid for by those who ARE insured.
    4) The cost of HCI itself is growing several times faster than the rate of inflation and is acting as a drag on the economic well-being of ALL the citizens of this country.
    5) As the provision of HCI IS an interstate commercial activity and Congress has the power to regulate said commerce, therefore Congress has the power to regulate HCI.
    6) HOW Congress regulates HCI is left to the discretion of Congress. Under the ACA, Congress declared that certain practices of the HCIs would no longer be legal and that rate increases were to be limited. Had Congress left HCR at that point, private insurers would have, over the next decade or so, gone extinct as the costs of HC continued to increase dramatically for HCI, while their income would have steadily fallen.
    7) The ACA also provided that those without HCI would be required by law to take out health insurance. If they couldn't afford the premiums, assistance would be provided. These 30 million plus new "customers" would offset some of the loss of income of the HCI; some, not all. That's the (in)famous "mandate" that you find so frightening.
    The examples you gave, if I may say so, display the same shallow comprehension of the ACA as any Teabagger I've heard. There's a difference between mandating purchasing HCI from a "private" company and mandating purchsing HCI from Blue Cross. The ACA does the former, NOT the latter. The former is legal, the latter isn't. Apparently you failed to see the difference.
    While I certainly agree that Mr. Limbaugh's person is large enough to qualify as "interstate commerce" on its own and as such COULD be regulated on that basis, an excellent, and most likely winning, legal argument based on the 1st Amendment would be made against requiring people to purchase his "books". Again, the Federal government COULD pass legislation that provided for sending gratis copies of Mr. Limbaugh's works to the citizenry, but that's still not the same as requiring each citizen to BUY those volumes.
    The anti-abortion one's the best of your examples. By that, of course, I mean it's the weakest. Federal funds are prohibited from being used to fund abortions. So to make your point valid, that prohibition would first have to be removed. If only! However, SHOULD such a law be passed, and pass Constitution muster, I will also expect to be shown videos of clogged arteries every time I purchase a Big Mac. Diseased lungs prior to the purchase of a pack of cigarettes. Mangled bodies after I show my ID and before I can get a drink. I think you get the idea?
    True, Congress can pass anything it wants and if there is a President willing to sign it and a SC willing to say it's "Constitutional" whether it is or not, then it becomes the law of the land.
    However, if that ever happens, we'll have bigger things to worry about than buying the books of a big-mouthed, drug addicted huckster...