Individual Mandate Struck Down

The best sum­mary I’ve read is Steve Benen’s at the Wash­ing­ton Monthly. He states:

“At the dis­trict court level, rul­ings on the Afford­able Care Act were regret­tably par­ti­san: two judges nom­i­nated by Repub­li­can pres­i­dents ruled against the law; three judges nom­i­nated by Demo­c­ra­tic pres­i­dents did the opposite.

At the appel­late level, this dynamic is not hold­ing up. At the 6^th Cir­cuit, Judge Jef­frey Sut­ton, a nom­i­nee of George W. Bush, was expected to be a key ally of the right in under­min­ing the law. He did the oppo­site, rul­ing in its favor.

Today, at the 11^th Cir­cuit, a con­ser­v­a­tive Clin­ton nom­i­nee, Judge Frank Hull, agreed that the indi­vid­ual man­date is uncon­sti­tu­tional, while a Rea­gan nom­i­nee, Judge Stan­ley Mar­cus, wrote a sting­ing, bor­der­ing on furi­ous, dissent

Court rul­ings don’t gen­er­ally make for easy read­ing, but Mar­cus’ blis­ter­ing response to today’s rul­ing is pretty enter­tain­ing. Note how he accuses his col­leagues of judi­cial activism in rul­ing against the ACA’s man­date provision:

“Quite sim­ply, the major­ity would pre­sume to sit as a super­leg­is­la­ture, offer­ing ways in which Con­gress could have leg­is­lated more effi­ca­ciously or more nar­rowly. This approach ignores the wide reg­u­la­tory lat­i­tude afforded to Con­gress, under its Com­merce Clause power, to address what in its view are sub­stan­tial prob­lems, and it mis­ap­pre­hends the role of a review­ing court. As non­elected judi­cial offi­cers, we are not afforded the oppor­tu­nity to rewrite statutes we don’t like.”

The majority’s rul­ing empha­sized that health care has “tra­di­tion­ally” been a state mat­ter, and used this rea­son­ing to rule against the man­date. Mar­cus didn’t care for this, either.

“It would surely come as a great shock to Con­gress, or, for that mat­ter, to the 47.5 mil­lion peo­ple cov­ered by Medicare, the 44.8 mil­lion peo­ple cov­ered by Med­ic­aid, and the over­whelm­ing num­ber of employ­ers, health insur­ers, and health care providers reg­u­lated by ERISA, COBRA, and HIPAA, to learn that, because the health care indus­try also ‘falls within the sphere of tra­di­tional state reg­u­la­tion,’ Con­gress was some­how skat­ing on thin con­sti­tu­tional ice when it enacted these laws.”

But I laughed out loud when Mar­cus responded to the majority’s argu­ment that the man­date is con­sti­tu­tion­ally imper­mis­si­ble because it’s never been done before.

“In the course of its opin­ion, the major­ity also attaches great sig­nif­i­cance to the unprece­dented nature of the leg­is­la­tion before us. It is surely true that, as the dis­trict court con­cluded, the indi­vid­ual man­date is a novel exer­cise of Con­gress’ Com­merce Clause power. But the mere fact of its nov­elty does not yield its unconstitutionality. […]

Every new pro­posal is in some way unprece­dented before it is tried. And to draw the line against any new con­gres­sional enact­ment sim­ply because of its nov­elty ignores the lessons found in the Supreme Court’s Com­merce Clause cases.”

BTW, Judge Stan­ley Mar­cus’ dis­sent is avail­able at

http://​www​.scribd​.com/​d​o​c​/​6​2​1​7​7​3​2​3​/​F​l​o​r​i​d​a​-​e​t​-​a​l​-​v​-​D​e​p​t​-​O​f​-​H​e​a​l​t​h​-​H​u​m​a​n​-​S​e​r​v​i​c​e​s​-​e​t​-al

By the way, the 11^th Cir­cuit 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.

And for those “let’s get back to what the Found­ing Fathers thought and intended” folks, let’s not for­get that in 1798, our 2^nd pres­i­dent and a Found­ing Father, John Adams, signed into law An Act for the Relief of Sick and Dis­abled Sea­men. This fed­eral law was passed by the 5^th Con­gress com­posed almost entirely of our rev­o­lu­tion­ary Found­ing Fathers. It man­dated that pri­vately employed sailors pur­chase health care insur­ance and it estab­lished the first pay­roll deduc­tion require­ment with fines for employ­ers who did not participate.

Mainer,

Here’s what your ances­tors paid, of course in 1798 dol­lars: This leg­is­la­tion also cre­ated America’s first pay­roll tax, as a ship’s owner was required to deduct 20 cents from each sailor’s monthly pay and for­ward those receipts to the ser­vice, which in turn pro­vided injured sailors hos­pi­tal care. Fail­ure to pay or account prop­erly was dis­cour­aged by requir­ing a law vio­lat­ing owner or ship’s cap­tain to pay a 100 dol­lar fine.

This 1798 leg­is­la­tion also autho­rized the cre­ation of a marine hos­pi­tal ser­vice, and man­dated pri­vately employed sailors to pur­chase health­care insurance.

Monotreme,

I agree that it would have been bet­ter to accom­plish single-​​payer, since that ¹⁄₃ would have been pissed off any­way. Given that umpteen Pres­i­dents going back many many years had tried, unsuc­cess­fully, to accom­plish a great part of what Barack Obama and the 111^th Con­gress accom­plished with PPACA. I see PPACA as a suc­cess and leg­is­la­tion that can be built upon and improved. You can’t improve leg­is­la­tion if you have no law to improve. And maybe improved sooner rather than later, if the Supreme Court rules against only the “indi­vid­ual man­date” por­tion of PPACA, which then could make single-​​payer a viable method to fund PPACA.