Next Stop: The Supreme Court

In a split decision, a three-judge panel on the 11th Circuit Court of Appeals has determined that the health care law's individual mandate exceeds Congress' Commerce Clause powers and is therefore unconstitutional. However, unlike the district court ruling preceding this case, the judges found the mandate to be "severable" and thus holds that the rest of the law can stand.

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In a previous ruling, the Sixth Circuit court upheld the constitutionality of the mandate.

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In a blistering dissent, Judge Stanley Marcus, also a Clinton appointee but a Republican originally nominated to the federal bench by Ronald Reagan, intimated that his colleagues were legislating from the bench. "Quite simply, the majority would presume to sit as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly," he wrote.

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This sets the stage for the question of the mandate's constitutionality to be settled by the Supreme Court.

  TPM

As expressed in prior columns, I share the concerns over federalism raised by the individual mandate. Before the law was passed, I warned that this provision was the most vulnerable and that the risk of such challenges could have been avoided by better drafting of the law. However, the Democratic leadership decided to push the law through on a thin margin without changes.

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As I have stated, people of good faith can disagree on these points and the matter cannot be fully resolved until put before the Supreme Court. Most people anticipate that Justice Kennedy will be the swing vote on a close decision.

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There is also some question over Justice Scalia’s view.

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I view the health care legislation as presenting a new type of federal claim and one that could leave few things as protected by federalism by expanding Congress’ enumerated powers to an unprecedented scope.

  Constitutional Lawyer & Professor Jonathan Turley

And besides that, the idea is just plain wrong. Unless you’re going to give people free insurance, then you’re out of line forcing them to carry insurance. If their health endangers someone else, we’ve got a different issue, but the simple fact that they might be unhealthy and not be able to pay for it is not a justification for making them carry insurance they can’t afford. You’d be infinitely more justified in simply saying, hey, if you get sick, you’re fucked, because it’s going to be up to you to find a way or a kind soul to pay for your medical care – the taxpayer is not picking up the bill.

The three judge panel ruled that “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.”

Precisely.

....but hey, do what you want....you will anyway.