Political Animal


August 12, 2011 3:40 PM Why the 11th Circuit is wrong about the mandate

By Steve Benen

Given recent developments and debates, we don’t revisit the details of health care policy all that often, so when a big court ruling comes down — like the one from the 11th Circuit this afternoon — maybe a refresher is in order.

The legal argument in support of the Affordable Care Act — specifically the individual mandate that ran into trouble at the 11th Circuit — has always been straightforward: the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. Ergo, the ACA fits comfortably within the confines of the Commerce Clause.

Today’s 2-1 ruling (pdf) didn’t see it this way.

[T]he individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. 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. […]

The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce. [emphasis in the original]

The 11th Circuit, by the way, was perfectly comfortable with the legality of the rest of the law, and was comfortable with the Affordable Care Act continuing to exist sans the one mandate provision.

So, what’s the problem with today’s ruling? The reasoning is all wrong. Is the mandate “wholly novel”? That’s certainly open to some debate. The notion of government-mandated purchases is hardly foreign — existing federal laws require millions of homeowners, for example, to purchase flood insurance. Nuclear power plants have to purchase liability insurance, whether they want to or not. The Civil Rights Act mandated businesses engage in commercial activity that owners found objectionable. George Washington signed a law requiring much of the country to purchase firearms and ammunition. John Adams and Thomas Jefferson even supported legislation that required private citizens to pay into a public health-care system, and included a “regulation against a form of inactivity.”

Does the rationale behind the mandate point to “potentially unbounded” state power? That’s not even a legal argument — courts can’t strike down provisions within laws because they’re afraid it might lead to other, imaginary laws they may not like in the future.

And what about the notion of compelling people “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”? Most of this is needlessly melodramatic; it ignores the fact that subsidies will offset the “expensive” insurance; and continues to draw political conclusions rather than legal ones.

Also note the italicized word in the ruling: it’s not commercial activity is people “abstain from the purchase.” This is, of course, the “inactivity” complaint.

Yes, there may be folks who don’t want to buy insurance, and they would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and — here’s the kicker — still get care. As you may have noticed, for quite a while, it’s been one of the right’s favorite arguments: the uninsured can always just go the emergency room and receive treatment, whether they have insurance or not.

Of course, when the uninsured get this care, and can’t pay for it, the costs are passed on to the rest of us — it makes the entire system more expensive, with hospitals and medical professionals providing care without compensation from the patient. The 11th Circuit suggests those who “abstain” from making a purchase aren’t affecting the commercial marketplace, but those who would choose not to get coverage have a significant impact on the larger health care system, which is precisely why the notion of a mandate enjoyed broad, bipartisan support up until late 2009. There was never any doubt as to its constitutionality.

This is the sort of ruling that not only relies on weak, politically-motivated reasoning, but also “ignores 60 years of precedent.”

And so a nation turns its lonely eyes to Justice Kennedy.

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.


Post a comment
  • tina on August 12, 2011 3:56 PM:

    "Potential," by definition, is something that doesn't exist. So what's new about this response? Exactly nothing. It's grounded, as are so many ostensibly "conservative" responses, in fear of something that doesn't exist.

  • stinger on August 12, 2011 4:21 PM:

    Excellent closing line, Steve!

  • ckelly on August 12, 2011 4:33 PM:

    OK, so jettison the individual mandate. It was a Republican idea anyway.

    Captcha this: hoshas company's

  • Texas Aggie on August 12, 2011 4:44 PM:

    What ckelly said and institute single payer (or Medicare for everyone).

    And the best part of the ruling is that now we don't have to pay taxes to support government activities we "have elected not to buy" such as the wars in the Middle East, the MIC, the Pentagon and Department of War, welfare for the red states, energy company subsidies, bank bailouts, the list goes on and on and on.

  • Texas Aggie on August 12, 2011 4:49 PM:

    What can you tell us about the three judges involved?

  • Ralph Kramden on August 12, 2011 4:49 PM:

    So say the Supremes uphold this logic and strike down ACA. Does this argument work against Medicare and Social Security as well? (Is Rick Perry right?)

  • Dennis on August 12, 2011 4:50 PM:

    The GOP is truly shameless. They are utilizing activist judges that they proudly admit to planting (Pawlenty) in the hopes that this bill will get struck down. If it does, and Democrats stay in power, the Republicans will be the ones fighting for the individual mandate. The GOP has already endorsed coverage for people with pre-existing conditions (See Roadmap), but the only way for that to be possible is by either forcing others to buy insurance before they get sick or a single payer system. The GOP has made their position very clear.

  • square1 on August 12, 2011 4:53 PM:

    The unavoidable truth is that this is novel. Historically, the government has not required its citizens to purchase expensive goods and services merely because they had a heartbeat. Virtually all analogies that have been made, to date, have been strained to the extreme. The individual mandate seems novel because it is.

    This is not to say that it is unconstitutional. People can make -- and have -- arguments either way.

    But when politicians suddenly invent a wholly novel way of accomplishing a policy goal, it is worth asking whether it is a good idea, regardless of whether it is legal. And I have been completely disappointed by the unwillingness of many Democrats to see beyond their narrow interest of accomplishing near-universal health care.

    I don't want to wake up in a world where Republicans have imposed a backdoor flat tax by privatizing all our government services and then mandating that we all buy insurance from their favorite campaign contributors. Is it really so hard to imagine what Republicans will force us to buy once they lose this battle in the courts? I can already hear them saying "Hey, Democrats started this."

  • Ralph Kramden on August 12, 2011 4:57 PM:

    @square1 - Doesn't the government already require people to buy pensions (SS) and medical care (Medicare) for their retirement?

  • Michael on August 12, 2011 5:03 PM:

    I call BS: people may abstain from prepaying for their health care, but no one (OK, maybe Christian Scientists) actually abstains from using the health care system when they are sick or injured. The only way the court would be correct in this decision would be if those uninsured never sought and received any medical care, including immunizations, physicals, prescriptions, etc. But, you know what - they do seek help and, in doing so, raise the costs of health care for all. With all due respect, the 11th Circuit needs to reconsider.

  • square1 on August 12, 2011 5:26 PM:

    @Ralph Kramden:

    Yes. But those are public entities. There is a big, big difference between paying taxes for public services and being compelled to buy a good or service from a private company.

    Again, I am not even discussing the Constitutional issue. I'm just speaking as a matter of good policy. When I pay money into Social Security or Medicare, I (theoretically) have some input into how the funds are managed and how much I am taxed. But when it comes to purchasing a good or service, that is not the case.

    Imagine that the government instituted a single-payer insurance system. And imagine that it was funded by premiums paid by citizens. Now imagine that the government contracted with Blue Cross Blue Shield to administer many of the services.

    It would be unquestionably illegal for the government to delegate to Blue Cross Blue Shield to set the premium amount. That would be a clear and improper delegation of the government's authority to levy taxes. And it is a good thing that only Congress and the President can set tax rates.

    But under the individual mandate, the insurers are the deciders of what our premiums we pay. Subject only to modest checks on annual increases, the insurers can do what they want. We have no say.

    It is true that, ultimately, the Supreme Court may uphold ACA's individual mandate as being legal. But is it a good idea? Do we want our government officials to be doing end-runs around the checks and balances inherent in our political system by privatizing government services?

    I say no.

  • H-Bob on August 12, 2011 7:16 PM:

    "with hospital [corporation]s and medical professional [corporation]s providing care without compensation from the patient." Why won't the courts protect the corporations ?

    It is amusing how they separate the transaction of buying health insurance from the purpose of the insurance policy and the use of the insurance proceeds (paying for healthcare, which is an interstate industry).

  • bjobotts on August 12, 2011 7:18 PM:

    Square 1: "...There is a big, big difference between paying taxes for public services and being compelled to buy a good or service from a private company...."

    But the goods and services from these private companies would be required to follow specific mandates in providing such services. Plus, this is the first step to single payer down the line as it gets the government's foot in the door of private ins., which is why private ins. companies are united against Obamacare.

    We now are required to pay for auto ins though we are not required to own a vehicle. But with health care ins we already own the vehicle. Forget the ideology and look at the practicality of this mandate. We all must pay for the uninsured when they get emergency room treatment...we are mandated by necessity. This way we put it into law and require the deadbeats to pay their fair share...and help them pay for it if being uninsured is due to low income or poverty. Plus we will have more control over private ins policies because we are united in being mandated to carry ins and will require our 'mandators' to be heavily regulated or there will be an even stronger cry for single payer...which will eventually come about anyway as more people become aware that Medicare can operate at only a 3% overhead.

    This court is going by politics rather than the law just to get it kicked up to the SC....the unelected, unregulated, above the law kings of American government.

  • dsimon on August 13, 2011 1:20 AM:

    "And so a nation turns its lonely eyes to Justice Kennedy."

    I'd bet more than even money that Scalia upholds the law. So I think it's at least 6-3.

  • scw on August 13, 2011 12:38 PM:

    "existing federal laws require millions of homeowners, for example, to purchase flood insurance." But you don't have to buy a home if you don't want to

    "Nuclear power plants have to purchase liability insurance, whether they want to or not" But you don't have to buy a nuclear power plant if you don't want to

    "The Civil Rights Act mandated businesses engage in commercial activity that owners found objectionable" But you don't have to start a business if you don't want to

    However, under the ACA, if you are a HUMAN you have to purchase health insurance.

    Sorry, but there is no way that is consitutional. Your arguments are terribly flawed