Today’s ruling by the 11th Circuit Court of Appeals striking down the national health care law’s individual mandate hinged on an issue that has consistently tripped up the Obama administration during oral arguments in several of the legal challenges to the law. The essential question is: if courts uphold the individual mandate, what is the constitutional principle that would limit the U.S. Congress’s exercise of its Commerce Clause power?
This issue has often been framed by asking whether the power being claimed could allow future Congresses to force Americans to eat broccoli or join a gym. Obama’s lawyers, while acknowledging that there’s no Supreme Court case that directly grappled with the issue, have countered by making the “health care is unique” argument. That is, since virtually everybody will need health care at some point, it’s a special case. Yet as I wrote in June, “simply saying the health care market is unique doesn’t actually create a very clear or understandable limit to Congressional power.”
And in a 2-1 ruling, with Clinton-appointed Judge Frank Hull co-authoring the majority opinion, the court agreed with this assessment.
“Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none,” the court wrote.
The government had tried to make a series of fact-based arguments for why health care is unique, but that failed to sway the court, which concluded that future Congresses could make all sorts of arguments as to why any given market “unique,” and use it to justify an otherwise unconstitutional action.
“Presumably, a future Congress similarly would be able to articulate a unique problem requiring a legislative fix that entailed compelling Americans to purchase a certain product from a private company,” the opinion reads. “The government apparently seeks to set the terms of the limiting principles courts should apply, and then asks that we defer to Congress’s judgment about whether those conditions have been met.”
The judges write that, “The government’s five factual elements of ‘uniqueness,’ proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory. The government’s fact- based criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.”
Later on, the court reiterates that: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. ‘Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.”
And the judges add that “the difficulties posed by the insurance market and health care cannot justify extra-constitutional legislation.”
The judges hammered home this point on several other occasions in a ruling that was 304 pages (including dissent).
No doubt, this is just one more step in the ongoing legal process. But today’s decision, which comes in the case brought by 26 states led by Florida and the National Federation of Independent Business, is still important for several reasons. The most obvious is that it effectively guarantees that the Supreme Court will be forced to consider this issue. While everybody has been assuming they would, it was by no means guaranteed that the Supreme Court would hear the case if the Obama administration won a clean sweep of all the cases at the appellate level. Opponents have been saying all along that they only needed one victory at the appellate level, and they got it.
Another reason is that it’s a very narrow ruling. It doesn’t strike down any part of the law other than the mandate, and it strikes down the mandate within the context of current Supreme Court precedent. In other words, it provides a clear path for Supreme Court justices to rule the mandate unconstitutional without having to revisit prior decisions. The mandate, as the 11th Circuit says, is “unprecedented.”
Further, the majority’s concerns about the lack of a limiting constitutional principle will help opponents of the law argue to the Supreme Court that upholding the mandate would actually have more radical consequences than striking it down. This may be particularly important to swaying swing justice Anthony Kennedy, although obviously it’s a fool’s errand to try to predict his thinking.
It’s important to reflect on how far we’ve come. When the legal challenges against the health care law were first launched, liberals dismissed them as “frivolous.” Now, a Clinton-appointed federal appeals judge has struck down the individual mandate, agreeing that: “The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.”
