On Friday, August 12, 2011, a Three-Judge Panel of the U.S. 11th Circuit Court of Appeals in Atlanta issued an opinion, striking down the individual insurance mandate in the Patient Protection and Affordable Care Act (PPACA) as unconstitutional under the Commerce Clause of the U.S. Constitution, but upholding the remainder of the health care law. The Three-Judge Panel was composed of Judges Joel F. Dubina and Frank M. Hull, who together wrote the majority opinion, and Judge Stanley Marcus who dissented. Judge Dubina was appointed by the first President George Bush, and Judges Hull and Marcus were both appointed by President Bill Clinton. This is the first judicial ruling in which a Democrat appointed judge has ruled that the PPACA, or any portion of it, were indeed unconstitutional. In its ruling the justices focused on two main portions of the law.
First, the two-Judge majority concluded that the individual mandate was unprecedented in its scope and that no previous judicial precedent exists that would directly support the exercise of Commerce Power to impose this insurance mandate on individuals. “The individual health insurance mandate is breathtaking in its expansive scope,” the Judges wrote. Pointing to governmental precedents regarding commerce, the majority opinion stated:
“Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.”
Second, the majority reasoned that the individual insurance mandate is beyond Congress’ authority under the Commerce Clause, because if it were allowed, these Judges could not conceive of any activity that Congress could not then regulate, which they suggested would make Congress’ power under the Commerce Clause unlimited. They then went on to state:
“From a doctrinal standpoint, we see no way to cabin the government’s theory only to decisions not to purchase health insurance. If an individual’s mere decision not to purchase insurance were subject to [Congress' authority to regulate under the Commerce Clause], we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”
Again, for those of you keeping score, there are now 3 ½ rulings that the PPACA is unconstitutional and 3 ½ rulings that the PPACA regulations fall within the scope of Congressional powers. An interesting outcome of the Three Judge Panel ruling on Friday was that based on its review of the entirety of the law, the Court found that the PPACA is actually composed of a series of independent statutes, under nine different Titles of the Act, which stand on their own, are completely separate and severable from the individual mandate, and are not invalidated by striking down the individual insurance mandate. The Court therefore upheld all the rest of the Affordable Care Act’s provisions, outside of the individual insurance mandate, overturning the part of the lower Florida Court’s judgment that struck down the entire health care law. This decision completely runs counter to the PPACA, as written, which specifically stated that the entire PPACA was to be enacted in its entirety or not at all. The typical severability clause, which written into almost every bill or contract, was intentionally omitted by the authors of the PPACA.
The government, or the plaintiffs, now have 90 days in which to file an appeal to this decision, and one or both sides certainly will appeal. So far, the reaction to the ruling can be summed up by the following two quotes:
Senate Minority Leader Mitch McConnell (R-Ky.) said the ruling “only strengthens and adds more momentum to the efforts of those of us who are working to repeal.”
The White House reacted in a blog post by Stephanie Cutter:
“Today, a different court ruled against the Affordable Care Act’s individual responsibility provision. We strongly disagree with this decision and we are confident it will not stand. The individual responsibility provision – the main part of the law at issue in these cases – is constitutional. Those who claim this provision exceeds Congress’ power to regulate interstate commerce are incorrect. Individuals who choose to go without health insurance are making an economic decision that affects all of us – when people without insurance obtain health care they cannot pay for; those with insurance and taxpayers are often left to pick up the tab.”
In answer to last week’s question on why 4 states—New Hampshire, Kentucky, Iowa, and Nevada were granted waivers from the Medical Loss Ratios (MLR) required by the PPACA, while North Dakota’s waiver request was rejected, I have the following suspicion: The 4 states that were granted the waivers are majority Democrat states, while North Dakota is primarily a Republican state. But those of you have been paying attention already knew that. While, that will never be the official reason, this will be the kind of politics that will be played out if the PPACA survives the legal challenges to it. This is also why the PPACA is so hotly debated on both sides of the issue. It is a watershed piece of legislation which will change the future course of America.
