Those of us who would wish they will have reason to hope. I am not a lawyer so I do not know all the legalities involved but at a gut level it just seems wrong to take over the entire industry and “rule” that we must buy a certain insurance. That doesn’t even begin to describe all the different aspects that have been tacked onto the bill.
Reams of paper and digital media have now been written since the ruling by the 11th Circuit Court of Appeals struck down the the national health care law’s individual mandate which would require us to buy insurance from birth and during our entire life. Phillip Klein has written in a blog in the Washington Examiner:
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.
Read his complete analysis it will give a good overview of the ruling and what it means.
Update: At the Legal Insurrection blog Professor William a. Jacobson has this to say:
Some thoughts in no particular order:
- Once again a court rejects the belated argument by the administration that the mandate is an exercise of taxing powers. I believe that every court that has considered the issue has ruled against Obama. Remember, during the political debate leading up to passage the Democrats insisted they were not raising taxes with Obamacare, and now those words have come back to haunt them.
- The main opinion is 204 pages, much of which is devoted to explaining how the law works. When Nancy Pelosi said we had to pass it to find out what was in it, she was right. And we need hundreds of pages of judicial decision to tell us.
- The mandate was rejected precisely because it requires people to enter a market rather than regulating a market. I’ll have to spend some more time to see if the court adopted the activity/no activity distinction, but this language certain sounds familiar to people who have been reading Legal Insurrection:
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It cannot be denied that the individual mandate is an unprecedented exercise of congressional power. As the CBO observed, Congress “has never required people to buy any good or service as a condition of lawful residence in the United States.” CBO MANDATE MEMO, supra p.115, at 1. Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. The statutory language of the mandate is not tied to health care consumption—past, present, or in the future.
Rather, the mandate is to buy insurance now and forever. The individual mandate does not wait for market entry. (p. 167)
- In another argument familiar to readers, the Court also pointed out that to accept the administration’s interpretation of the Commerce Clause would mean a limitless federal power:
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. (p. 171)
