The Legal Conservative

Breaking: Eleventh Circuit Rules Obamacare’s Individual Mandate is Unconstitutional – Forbes.

This is a 300 pg. opinion, so more comments to follow.  11th Circuit decision on Constitutionality of Healthcare

Nice Quotes:

In sum, the individual mandate is breathtaking in its expansive scope. It
regulates those who have not entered the health care market at all. It regulates
those who have entered the health care market, but have not entered the insurance
market (and have no intention of doing so). It is overinclusive in when it regulates:
it conflates those who presently consume health care with those who will not
consume health care for many years into the future. The government’s position
amounts to an argument that the mere fact of an individual’s existence
substantially affects interstate commerce, and therefore Congress may regulate
them at every point of their life. This theory affords no limiting principles in
which to confine Congress’s enumerated power.

Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today:there are none.

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.

After finding that the individual mandate is severable, because it is likely that Congress would have enacted the  the other provisions even without the mandate, the weakest part of the decision by far, the court does note that this seems to even be inconsistent with the Government position taken in the litigation:

We acknowledge that the government, in arguing for the individual mandate’s
constitutionality, stated summarily that the individual mandate cannot be severed from the Act’s
guaranteed issue and community rating provisions because the individual mandate “is integral to
those sections that . . . provide that insurers must extend coverage and set premiums without
regard to pre-existing medical conditions.” Government’s Reply Br. at 58. But as explained
above, whether a statutory provision is “integral” or “essential” to other provisions for
Commerce Clause analytical purposes is a question distinct from severability. And in any event,
the touchstone of severability analysis is legislative intent, not arguments made during litigation.

Tags: commerce clause, constitutional requirement, health care, healthcare, healthcare law suit, healthcare unconstitutional, mandatory insurance, Unconstitutional
Posted in Uncategorized | Comments Off

Well, as I write this, the arguments are underway in federal court in Pensacola on the cross motions for summary judgment in the case challenging the constitutionality of Obamacare.  For those of you following this case closely, attached are the parties motions and responses that are being argued today:   Plaintiffs MSJ-Memo; Plaintiffs MSJREPLY ; Plaintiffs Resp MSJ-Memo ; US MSJ-Memo; US Resp MSJREPLY ; US Resp MSJ-Memo

I believe the individual mandate is again likely to be held unconstitutional, but that that is likely to be the only count so decided.

Today Judge Vinson issued his order on President Obama’s motion to dismiss in the health care lawsuit that Florida and other states have filed in the northern district. The key count, the unconstitutionality of the individual mandate requiring purchase of health care or a penalty survived, as did a coercion count in regard to the state participation in the federal health scheme. Several other counts were dismissed, because of existing Supreme Court precedent that cannot be changed but by the Supreme Court, but the individual mandate count surviving is key. Health Care Order on Motion to Dismiss

The Federal Government had just filed its motion to dismiss and memo of law in support in the case Attorney General McCollum filed in the Northern District of Florida, Case No. 3: 1 O-cv-91-RV/EMT.  The memo of law is here DOJ MTD Memo 55-1.  Analysis of the points raised in the motion will follow.

The Federal Government summarizes its case as follows:

Plaintiffs’ challenge to the provisions addressing insurance provided to a State’s own employees fails on jurisdictional grounds and on the merits. The plaintiff States currently offer insurance to their employees and plaintiffs do not allege that their insurance plans are inadequate under the ACA. Thus, plaintiffs cannot show that they will be injured by the provisions they challenge. In any event, it is settled that Congress may impose on State employers the same type of requirements that it imposes on private employers. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1968).

Plaintiffs’ challenge to the minimum coverage provision likewise presents no case or controversy. The provision will not take effect until 2014, and it is entirely speculative whether the individual plaintiffs will be injured. The States and the National Federation of independent Businesses have no standing to challenge this provision either. And the Anti-Injunction Act bars injunctive relief against payment of a tax penalty. See 26 U.S.C. (I.R.C.) § 7421.

Even if plaintiffs had standing to challenge the minimum coverage provision, the challenge would fail. The minimum coverage provision is well within Congress’s authority under the Commerce Clause. Congress rightly understood, and plaintiffs do not deny, that virtually everyone at some point needs medical services, which cost money. The ACA regulates economic decisions about how to pay for those services – whether to pay in advance through insurance or attempt to do so later out of pocket – decisions that, “in the aggregate,” substantially affect the $2.5 trillion interstate health care market. Gonzales v. Raich, 545 U.S. 1,22 (2005). Among other things, Congress found that these economic decisions shift costs to third parties, ACA §§ 1 501 (a)(2)(F), 10106(a); “increas[e] financial risks to households and medical providers,” id. §§ 1501(a)(2)(A), 10106(a); raise insurance premiums, id. §§ 1501(a)(2)(F), 10106(a); precipitate personal bankruptcies, §§ 1501 (a)(2)(G), 10106(a); and impose higher administrative expenses, id. §§ 1501 (a)(2)(J), 10106(a). Congress determined that, without the minimum coverage provision, the reforms in the Act, such as the ban on denying coverage based on pre-existing conditions, would not work, as they would amplify existing incentives for individuals to “wait to purchase health insurance until they needed care,” shifting even greater costs onto third parties. Id. §§ 1501(a)(2)(I), 10106(a). Congress thus found that the minimum coverage provision “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Id. Congress also concluded that requiring the financially able to purchase insurance would spread risks across a larger pool and lower premiums. Id. §§ 1501(a)(2)(I), 10106(a). Congress’s authority under the Commerce Clause and Necessary and Proper Clause to adopt the minimum coverage provision is thus clear.

In addition, Congress has independent authority to enact this statute as an exercise of its power under Article I, Section 8, to lay taxes and make expenditures to promote the general welfare. License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867). The minimum coverage provision – in particular, the requirement in the Internal Revenue Code that individuals pay a tax penalty if they do not have the requisite coverage – will raise substantial revenue. The Supreme Court has long held that an exercise of this power is valid even if it has a regulatory function, even if the revenue purpose is subsidiary, and even if the moneys raised are only “negligible.” United States v. Sanchez, 340 U.S. 42, 44 (1950). It is equally clear that a tax predicated on a volitional event – such as a decision not to purchase health insurance – is not a “direct tax” subject to apportionment under Article I, Sections 2 and 9. United States v. Mfrs. Nat ‘I Bank of Detroit, 363 U.S. 194, 197-98 (1960); Tyler v. United States, 281 U.S. 497, 502 (1930).

Attached is a copy of the suit just filed challenging the constitutionality of President Obama’s Health Care Legislation. Analysis to follow, but wanted to get the suit up immediately, it has been filed in Federal Court in the Northern District of Florida.  Healthcare Unconstitutional COMPLAINT (03-23)

Ok, having had time to review the complaint, the basic arguments are summarized below:

1. Congress has no Constitutional authority to pass this healthcare act, not authority under Art I, or specifically the commerce clause or the taxing and spending clause.
2. Congress, by depriving the states of control over their budget processes because of  the unfunded mandates in this bill, has deprived the states of their sovereignty and the right to a republican form of government guaranteed under Art IV, Sec. 4 of the constitution.
3. Congress has violated the states’ 10^th amendment rights by requiring that states and state employees be agents of the Federal Government to enforce Federal Regulation, without federal payment.
4. Congress imposing a tax penalty for failure to have insurance is a violation of Art I, Sections 2 and 9, in that this is a direct that is not apportioned among the states according to a census, and is unrelated to any taxable activity or income.
5. Congress imposing a tax penalty for inactivity or a failure to engage in an activity is in violation of the powers reserved to the States or the people under the 10^th amendment, and is not predicated on any constitutional grant of authority to congress.