Michael Carvin, one of the lawyers who argued against President Obama’s national health care law before the 11th Circuit Court of Appeals, said the court’s decision to strike down the law’s individual mandate shows that the constitutional questions being raised transcend politics.
“It refutes the notion that this is a partisan policy fight where only the Republican appointed judges agree with our constitutional analysis,” Carvin said in a telephone interview. “This shows that it is a serious Commerce Clause issue where Congress has exceeded its power in an unprecedented way.”
President Clinton appointed one of the judges who co-authored the majority opinion in today’s two to one court decision. The suit was brought by 26 states led by Florida, as well as the National Federation of Independent Business. Carvin represented the NFIB.
“There’s simply no reason, if (Congress) can compel you to purchase this product (health insurance), that they can’t compel you to purchase any product,” he said.
The court specifically rejected the Obama administration’s argument that the mandate was justified because “health care is unique” given that virtually everybody needs it.
“This has always been a red herring by the government that somehow this will only be applied in this case for this law,” Carvin said. “Once you give Congress a power, they’re going to apply it wherever they want, and I think the court made that clear.”
Liberals criticized the 11th Circuit’s decision for its focus on what the limiting principle would be if the law were upheld. Caroline Fredrickson, executive director of the American Constitution Society, blasted the decision as “pure and simple judicial activism” in an emailed statement.
“That makes no sense,” Carvin said when asked about the liberal critique. “The whole point is Congress and the federal government is one of limited and enumerated powers. If the Supreme Court’s made anything clear, that means you have to articulate some limit on the enumerated power, otherwise they have exactly the same plenary police powers as states. And if your view of the Commerce Clause translates into being able to compel any purchase or do anything that affects the economy, the court has made clear that that can’t possibly be right.”
He explained, “If you took the words ‘regulate commerce’ out of the Constitution and put in the words ‘regulate whatever you want,’ you wouldn’t be a government of limited powers. And that’s all the court is saying. It’s hardly activist. It’s saying (to the government), ‘Your theory makes no sense, because under the guise of the Commerce Clause you’re assuming this plenary police power, and we can prove it because you can’t tell us anything it can’t get at.’”
Most observers now see it as a virtual lock that the case will end up before the U.S. Supreme Court, though the Obama administration could still delay that process by asking the 11th Circuit to review the case en banc, meaning the entire court reviews it rather than just the three–judge panel.
“Given the bipartisan nature of the judges who ruled this down, I think en banc is extraordinarily unlikely,” Carvin said. “Moreover, everybody knows this case is going to the Supreme Court, and it would not be helpful to the nation, or anybody on either side of this debate, to delay Supreme Court resolution of this very important issue. People today are making all kind of investment and other decisions, both in the states and private sector, on the basis of Obamacare. So, the uncertainty hanging over this law needs to be eliminated as quickly as possible.”
