Atlanta Appeals Court Crushes Obamacare Argument

The Market Ticker
VERBATIM POST
========================

This decision is one of the best - and most-expansive - I've seen on the matter of health care and the "individual mandate."

The Court has struck the individual mandate, but decided against enforcing non-severability - a result that I found somewhat surprising, given the congressional record. However, this ruling, assuming it is upheld, will end Obamacare anyway, since should the remainder of the law stand it will destroy the private health insurance marketplace - an outcome that is at least as good in the end analysis as just striking the entire law.

Let's look at some of the points raised:

As a preliminary matter, we recount what the record reveals regarding the cost-shifting effects of the uninsured. To the extent the data show anything, the data demonstrate that the cost-shifters are largely persons who either (1) are exempted from the mandate, (2) are excepted from the mandate penalty, or (3) are now covered by the Act’s Medicaid expansion.

Yep. Illegal aliens cost-shift like crazy - from them to you and I. But none of them are required to buy insurance. Low income persons also are exempted, as they are covered by either Medicare or exempt from the penalty. Further, those with pre-existing conditions who were denied coverage no longer can be denied, so they disappear from the impacted segment as well!

Who's left? Healthy persons who forego purchasing insurance. In other words, the government penalizes you for being of normal weight and taking care of yourself. If you do so and by doing so decide you do not need to purchase this medical insurance, you are forced to either become sick or pay a penalty!

That's just a bit backward, don't you think?

The court also rejected the mandate on the principle of federalism. This is an important finding, for it is one of the few decisions I've seen of late that recognize the inherent distinction between federal and state regulatory power. In fact, this is exactly what our founders intended - 50 "laboratories" in which one could choose to live, and should one not like the outcome in one of those laboratories of government they could move and enjoy the experience of pleasure (or pain) in a different one!

Federalism is at the core of a limited federal government with most regulatory activity taking place in the States. It has been lost over the decades, and as such it is vitally refreshing to see this argument raised "front and center" in the Obamacare litigation chain - and defended by the 11th Circuit.

As the court found:

For these reasons, we conclude that the individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975-page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.

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.

Because the Commerce Clause is an enumerated power, the Supreme Court’s decisions all emphasize the need for judicially enforceable limitations on its exercise. The individual mandate embodies no such limitations, at least none recognized by extant Commerce Clause doctrine. If an individual’s decision not to purchase an expensive product is subject to the sweeping doctrine of aggregation, then that purchase decision will almost always substantially affect interstate commerce.The government’s five factual elements of “uniqueness,” proposed as constitutional limiting principles, are nowhere to be found in Supreme Court precedent. Rather, they are ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory. The government’s fact based criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.

Have a nice day Obamacare....