The ObamaCare Appeals Court ruling

The 11th Circuit Court of Appeals issued an important decision yesterday in the case originally brought by 26 states against the ObamaCare bill. They ruled 2-1 that the “individual mandate” was unconstitutional. That is the part of President Obama’s health care bill that REQUIRES everyone in the nation to buy health insurance. Lower courts have split on this issue, and this is the first case to reach the appeals courts.

This is an important ruling because the majority argued the mandate is a new power, not Constitutionally based, that Congress has arrogated to itself by trying to stretch the “regulation of interstate commerce” clause of the Constitution to cover health care, arguing that it is a form of interstate commerce even if the insurance company and the buyer are all in the same state. As the state’s attorneys argued, if Congress can force everyone to buy private health insurance under this clause, is there ANYTHING Congress can’t force people to do? By the same argument, we could all be forced by federal law to enroll in a gym or eat broccoli if the majority in some future Congress thought it would be good for us.

The appeals court ruling makes it certain this case will now move on the Supreme Court, and although it is never certain how the Supreme Court will view a case, and how the individual justices will vote, I think the odds are that they will uphold the appellate court ruling.

If the Supreme Court upholds the appellate court’s decision it will bring up an interesting question. Congress in its haste to ram through the bill neglected to include a standard “severance” clause – legal language that says if any part of the law is invalidated by the courts the rest of the law still stands. Without this clause, it can be argued that invalidating any part of the law invalidates all of it.

Moreover, it is not clear that the law can work as intended without the individual mandate. If participation is voluntary, many young healthy people will elect not to buy insurance, as they do now. That means the pool of people covered will have a disproportionate number of chronically ill people, which will push the costs up sharply. Since Medicare is already on the way to bankrupting the nation, these added costs are simply unsustainable.

It will be interesting to see how this all comes out. And of course if in the end ObamaCare is ruled unconstitutional (as I think it probably should be, however noble its intentions), it will probably be a major blow to President Obama’s re-election chances.

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Correction: this is not the first ObamaCare challenge to reach the appeal level. At the end of July a three judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati ruled on another ObamaCare challenge, and essentially supported the constitutionality of the law, but with many disagreements among the three judges. In addition, somewhat different issues were raised in this case. In essence the court is this case ruled that the Constitution does not forbid regulation of “inactivity”, which seems to me a bit of a stretch.