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Obamacare Loses Another One

By on 8.15.11 @ 6:09AM

But the long twilight struggle with the forces of “reform” goes on.

On Friday, the Eleventh Circuit Court of Appeals ruled against the Obama administration in Florida v. HHS, declaring Obamacare’s individual mandate unconstitutional. This was good news, but not particularly surprising considering the tough questions with which the three-judge panel peppered the government’s lawyers during oral arguments last June. In that hearing, DOJ attorneys were repeatedly pressed about the mandate’s implications for limited government. One judge, for example, pointedly asked if there were “any limits” left on federal power. Its predictability notwithstanding, the decision did cross two new and important milestones: The 2 to 1 majority that struck down the mandate included a judge appointed by a Democrat president, and this is the first time an appeals-level court has ruled against Obamacare.

The former milestone robs Obamacare supporters of an important talking point. Since this lawsuit — whose plaintiffs now include officials from no fewer than 26 states — was filed in March of 2010, the law’s advocates have consistently insisted that it is politically motivated. As far back as April 2010, for example, the New York Times advised its readers that “experts… dismiss the Florida lawsuit as a politically motivated lark at taxpayer expense, and argue that the insurance mandate falls comfortably within Supreme Court precedents.” Few honest observers have taken this nonsense seriously. But, as long as only Republican appointees rendered adverse opinions, it was a useful line for the White House, congressional Democrats and their many allies in the “news” media.

That convenient meme was shot to pieces on Friday when Judge Frank Hull, who was nominated for the Appeals Court by none other than Bill Clinton, joined Republican appointee Joel Dubina in ruling against the mandate. And their opinion was by no means ambiguous: “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.” This speaks directly to issues raised during the oral arguments by Judge Hull, whose questions included a query concerning whether Congress could pass a similar law requiring Americans to buy certain types of cars.

The importance of this ruling goes far beyond depriving the White House of a mere talking point, of course. It also provides a bipartisan argument against congressional overreach: “Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority.” They go on to point out that even during unambiguous crises like World War II, “Congress never sought to require the purchase of wheat or require every American to purchase a more fuel efficient vehicle.” This reference to “fuel efficient vehicles” suggests that these two judges are concerned that the insurance mandate is an evil portent of things to come if it is allowed to stand.

The ruling wasn’t unanimous, however. Judge Stanley Marcus, whom Bill Clinton appointed to the Eleventh Circuit in 1997, wrote a rather querulous dissent. Marcus claims that the individual mandate regulates “quintessentially economic conduct,” but neglects to explain how not engaging in a transaction constitutes such activity. Like many supporters of the mandate, he sidesteps the Constitution and reverts to an economic argument involving “the shifting of substantial costs from those who do not pay to those who do.” In the end, however, Judge Marcus concedes he has no Supreme Court ruling upon which to hang his hat: “[I]t is surely true that there is no Supreme Court decision squarely on point dictating the result that the individual mandate is within the commerce power of Congress…”

This absence of a Supreme Court precedent for the mandate is one reason for the virtual unanimity among constitutional scholars that Obamacare’s ultimate fate will be decided by the high court. This consensus will be strengthened by Friday’s ruling because the Eleventh Circuit’s decision conflicts with a ruling by the Sixth Circuit Court of Appeals, which recently upheld the law’s constitutionality. Adding to the confusion, Judges Dubina and Hull chose not to strike down the entire law, despite its lack of a severability clause. Theoretically, the absence of language ensuring that Obamacare remains in force even if one of its provisions is ruled invalid requires the whole statute to be declared void if the mandate is found unconstitutional. So far, however, only U.S. District Judge Roger Vinson has had the courage to take that step.

It was Vinson’s ruling that the administration, after much stalling, appealed to the Eleventh Circuit. And, unfortunately, Friday’s decision will have little effect on the DOJ’s foot-dragging strategy. Hoping to buy Obamacare enough time to embed itself so deeply in the health care system that enormous disruption will ensue if the law is struck down, the Justice Department has employed every means possible to put off its date with the Supreme Court. And now that the presidential election looms, there is even more incentive to stall. As one legal scholar has pointed out, this ruling leaves the DOJ with several delay options: “seeking en banc review in the Eleventh Circuit, taking the full 90 days to file its certiorari petition, and seeking extensions to file its brief in opposition in Thomas More Law Center…”

Meanwhile, Obamacare continues its long march forward. On the very day the Eleventh Circuit issued its ruling, the Obama administration spewed forth yet another gusher of regulations dictating processes for enrolling in insurance plans, receiving federal subsidies and dealing with the new insurance exchanges. These latest fiats also change key rules relating to the mandate. In fact, they exempt selected families altogether from the onerous requirement to buy insurance. So, while there is no doubt that Friday’s bipartisan ruling by an important court on a crucial case constitutes a significant victory, the long twilight struggle continues. In the end, the decisive battle will be fought at the ballot box.

About the Author

David Catron is a health care revenue cycle expert who has spent more than twenty years working for and consulting with hospitals and medical practices. He has an MBA from the University of Georgia and blogs at Health Care BS.

Letter to the Editor View all comments (47) |

Bill Hussein O'Stalin| 8.15.11 @ 6:50AM

You have to wonder about the final implications on Social Security.

Although it's passed off as a tax, it's a product, and a defective one. Ditto Medicare/Medicaid.

It's only a question of time before the entire concept of government sponsored tomfoolery like Social Security falls on that fact it's another government mandated product American citizens are forced to buy at gunpoint.

Obamacare is just an extension of all government mandates which have gone before with the sheep being rounded up and politically herded into the same pens.

If nothing else, it shows how the agents of more government think. They want dictatorships at all costs and in all forms.

And socialized fake retirement plans and socialized health care are just two more candles on their cake.

Have you considered| 8.15.11 @ 8:46AM

BHO'S, SS was originally designed as an annuity program, and your heirs were repaid any unused contributions upon death.

Also, Social Security is a legally voluntary program, even though it is treated as mandatory. This is why it is constitutional. Medicare, I believe, is a simple tax pursuant to the 16th Amendment, and is therefore considered constitutional.

Obamacare is a mandate based upon the mere fact that you exist, and are a citizen of this country.

If it is ultimately found by SCOTUS that the federal government can dictate that you purchase a product, any product, I honestly believe there will be a revolt.

This Is A Hill Worth Dieing Upon.

John Navratil| 8.15.11 @ 10:52AM

Have you Considered,

This is the first time I've heard of the Social Security system having been design as an annuity program. The first beneficiary (Miss Ida May Fuller) See: http://www.ssa.gov/history/idapayroll.html received her first check in the amount of $22.54. She paid in a total of $24.75, lived to be 100 and withdrew $22,888.92. Not a bad investment. It makes Hillary's cattle futures look tame by comparison.

buckeyeman| 8.15.11 @ 11:39AM

"Also, Social Security is a legally voluntary program, even though it is treated as mandatory"

What does that mean? SS is most definitely not voluntary. If you know some facts to back up your novel assertion, please share them with the rest of the world.

Miasmark| 8.15.11 @ 6:31PM

Little known fact. Amish have opted out of the system and tend not to even have a SSN.

TrueBlue| 8.15.11 @ 2:19PM

It's not voluntary, have you tried to remove yourself from the program? It's not possible, even if you're willing to forgo any funds you've so far deposited.

Dave | 8.15.11 @ 10:59AM

I'd intended to write a lengthier, more analytical posting, but most all who read A.S. are already "up" on what Obama's "up" to. For the past 24-plus months, the man's plan has been to get us all aboard the federal S. Train to New Marxburg-West. Actually the logo for his new planned city is kind of cool. It's the Green Giant waving a bag of peas while driving a Gold Prius.

I think Michelle designed the graphic.

As far as last week's ruling by the 11th goes, it was good news, indeed, but the bottom line is -- the final gavel will, most likely, be tapped down by the long suspected co-writer of Bob Dylan's "Blowin' In The Wind." That'd be Supreme Court Justice "Don't Leave Me off The Guest List" Kennedy. Without getting too gross here, and with regard to a final ruling on Obamacare, Mr. Kennedy could blow either way. It just depends on who's sending him the updated Black Tie Dinner List. AND if he's still on it.

As far as the other Supremes go, I figure we all have a good idea of which way their individual winds will blow. Again, most among us believe Justice Kennedy will be that final gavel in the deal. After all, this is exactly why President Barry arranged reserved seating for the premiere of "Butch Kagan and the Sundance Sotomayor."

It's in Wide Screen format.

At then end of the day and after all opinions are all tallied, if Justice Kennedy goes non-Constitutional rouge on this one, the only questions remaining will be -- how much is a tub of popcorn and a box of Junior Mints gonna end-up costing?

Guess we'll have to see.

Haine online | 9.12.12 @ 4:23AM

This is the first time I've heard of the Social Security system having been design as an annuity program. T

Brian Mc| 8.15.11 @ 7:00AM

I suppose that I would be compelled to finally shrug and get on board with socialized medicine when the legislature gives up their medical plan and joins up to stand in line with the rest of us. And while they're at it, maybe they would let me vote myself a pay increase...

Darin| 8.15.11 @ 7:02AM

I think that vote is scheduled for the second Tuesday of next week.

Brian Mc| 8.15.11 @ 7:22AM

I am going to have a party, along with the rest of my staff but short one, my personal aid to the assistant of the secretary to the head of the fiscal responsibility committee is on sabbatical.

Darin| 8.15.11 @ 7:01AM

The idea of the government forcing you to purchase a particular product (in this case, health insurance) means you do not have the right to live. If the government can mandate this, they can mandate death to "undesirables" in the name of the greater economic good. The logic and reasoning are exactly the same - they only differ in scope. In truth, this already exists in states like Oregon. The state will not cover certain medical procedures for terminal patients, but the state will pay for the patient to be killed (calling it "physician assisted suicide" or some other such claptrap).

Timothy L. Pennell| 8.15.11 @ 7:37AM

Somebody help me out. Is there a Magic Number of Circuit Courts of Appeal, that have to weigh in on this, before it can go to the Supreme Court? Is it 5? 6?
One says it's NOT Constitutional. The next one says it is, Then it isn't. Then it is, again.
States are Spending Money they don't have, for something that may never come on line. They should STOP.
If I'm the Governor of a State, i put the Brakes on, now. "Not another DIME, until this thing is hashed out.
And, to the SUPREME COURT?
It's just a name, people. You put your pants on, one leg at a time. Just like the rest of us. You cough and you sneeze, and sometimes, you even LET ONE RIP, only to find that diarrhea is a dish best served cold.
No. That's revenge.
Anyway. YOU GET THE PICTURE.
Come down offa your High Horses, and do some Freakin Work!
This needs to be settled, NOW!
As my NANA used to say: Sh*t, or get off the pot.
(Is this too many POOP references? Or, is that impossible?)

Bill| 8.15.11 @ 9:10AM

When one Circuit holds unconstitutional a statute that the admininstration wants, the practice is to enforce the law in the circuits that haven't passed on the law and not where it's been held unconstitutional. Then the argument becomes a 14th Amendment one (unequal "protection" of the law), and the case can go directly to the U.S. Supreme Court.

less government| 8.15.11 @ 5:35PM

I remember reading something from a legal source somewhere that it actually isn't as clear cut in favor of the bill when justices don't declare it unconstitutional. What they are actually doing is just kicking the decision down the road (and getting it off their table quickly) so they aren't scolded by the Supreme Court later. That is what was amazing about Judge Vinson's decision. He had the guts to write about this bill in no uncertain terms and be bold whether the Supreme Court agrees or not (which I think they will). He is a true hero in my book.

Lavaux| 8.16.11 @ 5:20AM

The individual mandate is now unconstitutional in Alabama, Georgia and Florida - the 11th Circuit's jurisdiction. Until the Supremes rule otherwise, the citizens of these three states are liberated from the federal obligation to purchase an approved health insurance policy from a private company. Citizens in the other 54 ... er, 47 states, with the exception of those residing in the Eastern District of Virginia, are not so lucky to date.

The 4th Circuit, which comprises WV, VA, MD, NC & SC, is still in play because VA Attorney General Ken Cuccinelli prevailed in his bid to overturn the individual mandate in the case Commonwealth of Virginia v. Kathleen Sebelius before the U.S. District Court for the Eastern District of Virginia. This ruling was appealed to the 4th Circuit, which so far as I know is still deliberating. If Cuccinelli succeeds, the lucky citizens of 5 more states will be free of the individual mandate. That's a lot of folks - the entire Eastern Seaboard from Florida up to VA/WV/MD.

The rest of us are screwed until either the Supremes rule in our favor or the GOP repeals Obamacare following a landslide sweep of the White House and Congress in 2012.

AnybodyButChicagoDemocrats| 8.16.11 @ 2:51PM

This is exactly why everyone who is opposed to Obamacare should write to their Congressman and Senator to pass a "Sense of Congress" to expediate this to the Supreme Court. The more pressure on the S.C. to take up this case the better!!!

While I would love to see this as an election issue against Obama and Liberals, this sense of uncertainity is hurting any recovery our economy so desperately needs.

Squarehead| 8.15.11 @ 8:01AM

If Judge Marcus supports the mandate based on the economic argument involving "the shifting of substantial costs from those who do not pay to those who do", I wonder if he would be in support of revising our tax code so that the bottom 48% of the population would have to pitch in and pay their fair share of income taxes. I'm guessing... no.

JP| 8.15.11 @ 8:15AM

Does it really matter what the Appeals Court rules? Congress has given HHS Director immense regulatory powers that do not require Congressional approval. How many times does the ObamaCare bill begin with the clause, "The Dir HHS shall...." (over 300 times). Essientially, ObamaCare is beyond normal legal recourse. If the SCOTUS finds the individual mandate unconstitutional, so what? HHS, like the EPA will find other ways to skin a cat. Or, they can always proceed business as usual and bankrupt the nation.

The only way to remove ObamaCare will be for Congress to repeal it in toto. And do we really think the GOP (even a majority) has the guts to withstand the pressure? I'm skeptical.

YeloStalyn| 8.15.11 @ 1:19PM

If the bill that grants HHS it's power is repealed/struck down, then HHS's power gets repealed/struck down with it.
They can't claim authority that resides in a non-existant law.
...well, they can. And will. And do... but they're not supposed to.

mistermoose| 8.15.11 @ 4:35PM

Let us assume that ObamaCare is NOT struck down by the Supreme Court. Starting in 2014, millions of Americans will be faced with having to pay health insurance premiums that they literally cannot afford to pay. Some will choose to pay the fine instead, but then they will simply be unensured and poorer by several thousand bucks.

However, most of us will simply ignore the law, because we simply cannot afford to obey it. Then what happens? Will the government try to put us all in jail, or simply try to fine us by witholding our tax refunds? The end result of this will be either armed insurrection or an overwhelming landslide election that will remove the progressives from power for at least a generation.

Or else the whole country will go broke.

Skippy| 8.15.11 @ 7:01PM

The whole country is already broke.
Maybe we could go...broker?

Lavaux| 8.16.11 @ 4:52AM

Broke, broker and brokest are valid concepts in bankruptcy law, particularly with regard to Chapters 11 and 13.

The Bishop| 8.15.11 @ 8:43AM

On Friday, my employer - an agency of the Federal leviathan - issued proposed regulations regarding the tax treatment of insurance purchased through state exchanges (okay, you alert ones have guessed who I work for). The release of the proposed regulations (in concert with a similar release by the Department of Health and Human Services) invites comments from the public regarding these regulations by November 10, 2011 with a public hearing to follow on November 17th. In other words, the Federal government (several agencies) are going full steam ahead to implement this crap until SCOTUS says otherwise.

The cost of the infrastructure being set up will be enormous. And the background information in the proposed regulations are parroting the Administration's talking points of the imagined benefits of this monstrosity. It is critical that the PEOPLE's voice be heard now.

God bless the 11th Circuit for keeping this controversy in play, but it could be too little too late. A tsunami of regulations are on their way.

The Bishop| 8.15.11 @ 8:48AM

And while I'm thinking of it, why is the Department of Health and Human Service sponsoring a part of traffic reports on WLS-AM (the might 890) as I heard on that station two weeks ago? There was nothing accompanying that spoke of being alert for signs of a stroke or getting cancer screenings or anything else related to health. Federal dollars used just to help with an agency's name branding. You've got to be kidding!

Bill| 8.15.11 @ 9:06AM

The recent blows that reality has struck against the notion that government can take over an entire industry, such as the health care industry, and fund it adequately, doesn't seem to have impinged substantially on the thinking of those who hope that National Health in America is the proper way to go, despite the majority of the people opposing its implementation. I suppose the U.S. Supreme Court will have to be drawn into this debate.

My great fear is that Obamacare will be upheld, and will terminate most or all of the private health care industry, and then, when the money for Obamacare runs out, there will be no health care in America.

Mimi| 8.15.11 @ 11:28AM

So if that's the case.....We will be telling our grandchildren...." What it was like to live in America... WHEN IT WAS FREE " The Black Robes should demand the darn paperwork and get the thing settled once and for all....!!

Anthony| 8.15.11 @ 11:27AM

Unfortunately, like the rest of the demise of our representative government that is supposed to have 3 independant branches of government, the left have made sure, over the past decades, that our courts have become a political crapshoot.
This case is the very rare exception to that rule, with one D appointed judge who has judicial integrity and fealty to the Constitution as his only agenda.
For the most part, 0ur entire federal court system, under the control of the left, as a result of their politicalization of the judiciary, has made these courts nothing more than a numbers game, as opposed to reasoned adherence to the Constitution. What we've been getting are these 2/3, 5/4 decisions, which are a manifestation of the politics of judicial appointments.
We've watched the political class handle federal appointments, especially to the S.C. It has become a bloodbath to secure the 5 votes necessary to impose their leftist agenda.
Just last month, as an article at the AT highlighted, the 4 leftists on the S.C., in a death penalty case entitled Leal-Garcia, actually relied on a piece of legislation sponsored by Leahey of VT, that has not even been acted upon, as president to overturn his death sentence, contradicting reasoning they used just months before.
The left are completely dedicated to their agenda and no amount of reasoning, intellectual integrity, or adherence to past precident matters. The ends justify the means, that is the only credo of the American left.
Obozocare will be the mother of all S.C. decisions. The left have already attempted to get Thomas recused, while making excuses for Kagen, Obozo's former solicitor-general, directly involved in Obozocare.
This battle will tear the S.C. apart, and America even more so than we already are.
All of our institutions have been corrupted by the left. We need a sunami to clean America out.

TRC| 8.15.11 @ 5:09PM

While the DOJ may have delay options, can't the 26 states who brought the challenge to Obamacare immediately file a writ with the Supreme Court because the 11th Circuit reversed the part of Judge Vinson's judgment striking down the entire statute?

Jack Davis| 8.15.11 @ 5:27PM

Here is what Obama’s health-care reform law has done to me. Not FOR me; TO me.

BEFORE Obamacare, that is up until December 31, 2010, the family deductible for my company-paid medical coverage was $300…and it had been $300 for years.

AFTER Obamacare, that is on January 1, 2011, the family deductible for my company-paid medical coverage went up to $2,800. You can do the math. And because my company is self-insured, it was a take it or leave it situation.

Obama LIED when he said that if I liked the plan I currently had, I’d be able to keep it. He was WRONG. Instead, my company canceled the plan I liked and in its place substituted the aforementioned high-deductible plan.

Obama LIED when he said his plan would “bend the cost curve downward.” What he really meant was: “Bend over and face downward.”

Thanks, Obama!

norm| 8.15.11 @ 5:59PM

The ballotbox has already decided against Obamacare. Now it shall again

daveugber| 8.15.11 @ 6:40PM

you would think that the obama administration would want this law to be constitutional BEFORE they try to entrench it...does it not seem heinous - legally and morally - that the administration would want this law implemented if it is in violation of the constitution??? why on earth would our president or even the congress wish to put in place a law that is unconstitutional??? this alone should tell the american population that the current administration is not acting in the best interest of the populace...

megapotamus| 8.15.11 @ 7:36PM

For a year or so we have been enjoined from calling this beast Obamacare. It was racist, reductive and insulting. Whether it was the man or the law that was insulted I never could find out. But today the President has embraced the term.... sort of, transliterating it from Obamacare to Obama Cares. Whew! Now THAT is genius! Was that Axe or Plouffe? I think this represents a turning point on the issue. Obama Cares! Yeah, that's the ticket.

Votocracy| 8.15.11 @ 8:52PM

Frustrated with the same old politics and wish things would change? Why don't you voice your opinion in our daily polls, support candidates that match your interests, and share your thoughts with others? http://bit.ly/Votocracy

Henry Miller| 8.15.11 @ 9:12PM

"the shifting of substantial costs from those who do not pay to those who do."

If that's a valid argument, then it can be applied equally well to entitlements where the value received by beneficiaries exceed what they pay for those benefits--someone's paying the bill.

Clawhammer Jake| 8.15.11 @ 10:01PM

Just what we need. A medical system that allows both those with and those without money an opportunity to purchase medical care.

lady2b2c| 8.15.11 @ 10:07PM

Mr. Obama is still the President of the USA. But he is over his head. socially and fundamentally, he is out of touch. He could start with reversing outsourcing of US jobs. Then fixing Medicaid waste. There are private and public sector companies working on solutions. DHS is one of them www.datahealthsystems.com. If the President would look to the private/public sector for help and stop throwing money around, his approval ratings would be reversed. Capitalism is the solution not bigger government.

lady2b2c | 8.15.11 @ 10:07PM

Mr. Obama is still the President of the USA. But he is over his head. socially and fundamentally, he is out of touch. He could start with reversing outsourcing of US jobs. Then fixing Medicaid waste. There are private and public sector companies working on solutions. DHS is one of them www.datahealthsystems.com. If the President would look to the private/public sector for help and stop throwing money around, his approval ratings would be reversed. Capitalism is the solution not bigger government.

rick3262| 8.16.11 @ 1:22AM

Obama's in so over his head that he thinks that he's the emperor of Atlantis.

Lavaux| 8.16.11 @ 4:24AM

Obamacare was already fought at the ballot box in 2008, when voters gave Democrats control of all three branches of the federal government. What did the voters think this would lead to: tax reform, regulation rollbacks, entitlement reform, tort reform and extraterritorial security disengagement? Which Democrat promised these policies? It certainly wasn't "spread the wealth around" Obama.

To serve accuracy, what voters chose in the 2010 midterms and will choose in 2012 is the repeal of Obamacare, to which the 11th Circuit lent constitutional legitimacy. Voters will also choose spending cuts, tax reform, entitlement reform, regulation rollbacks, tort reform, and extraterritorial security policy reform. They know that America is going in the wrong direction, i.e. off the proverbial cliff, and that they've got to do something about it.

John D. Froelich| 8.16.11 @ 7:50AM

Such a system would change the entire nature of our free society.

Oldefarte| 8.16.11 @ 11:12AM

It is not legal/constitutional; and therefore its proponents are illegal as well. Impeachment should be a possible consideration, but the charge of RACISM would no doubt be politically applied to same. The one/only HOPE lies with the November 2012 elections and thereafter with its LEGISLATIVE REPEAL!!!!!

supra | 10.18.11 @ 1:42AM

Thanks for sharing this nice post.I will keep your article in my idea. This website is to I too have to help. Very good.

Haine online | 9.13.12 @ 2:58AM

Obama's in so over his head that he thinks that he's the emperor of Atlantis.

Jocuri Noi | 9.13.12 @ 8:19AM

"Also, Social Security is a legally voluntary program, even though it is treated as mandatory" Jocuri cu Mario

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