I have not yet read the opinion, but, the United States Circuit Court of Appeals for the 11th Circuit has just held that Obamacare’s mandate that all buy insurance or pay a penalty is unconstitutional. This was the case brought in the Northern District of Florida by 26 states. I will provide an update as soon as I have a chance to read the opinion, but thought you might like to know at least this much.
In a 2-1 decision, the 11th Circuit held unconstitutional that section of Obamacare requiring all to purchase insurance or pay a penalty. However, it reversed that section of the district court’s opinion holding that the entire law was unconstitutional because the mandate could not be “severed” from the rest of the law. Should you be so inclined, you can read the entire 304 page decision here.
Although concerned about the issue of “activity vs, inactivity”, the court (at page 113) essentially defined the issue as follows:
Everyday, Americans decide what products to buy, where to invest and save, and how to pay for future contingencies such as their retirement, their children’s education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes. Under this theory, because Americans have to spend money and must inevitably make decisions on where to spend it, the Commerce Clause gives congress the power to direct and compel an individual’s spending in order to further its overreaching goals, such as reducing the number of uninsureds and the amount of uncompensated health care.
The court found this concept “breathtaking in scope” (p. 130), and if it were to be true, there would be no limits on the reach of the Commerce Clause (p.137).
In delving into an area that no court has really analyzed, beginning at page 139, this court looked extensively at the “findings” used by Congress to support the mandate, most particularly, the concept of “cost-shifting” from those without insurance to those with insurance. Essentially, the court found that the law, without the mandate, handled that problem. Many of the cost-shifters are illegal aliens, and, the law exempts them from the requirement to purchase insurance. Many of the cost-shifters are the poor, and either the law exempts them from the mandate, or, they are covered by the law’s large expansion of Medicaid. And finally, many of the cost-shifters were those who were unable to obtain insurance because of preexisting conditions, and the law now provides them with coverage. At page 140, the court said:
In reality, the primary persons regulated by the individual mandate are not cost-shifters but healthy individuals who forego purchasing insurance. [emphasis in original]
As to the government’s argument that because the law requires that insurance companies issue policies to anyone who applies (regardless of their health), the mandate is needed to prevent people from waiting until they are sick and then applying, the court (at page 165) basically told the government that it was the architect of its own dilemma.
At best, the individual mandate is designed not to enable the execution of the Act’s regulations, but to counteract the significant regulatory costs on insurance companies and adverse consequences stemming from the [Act]. [the first emphasis is in the original, the second is mine]
In conclusion, the court (at page 206) found the individual mandate to be:
…a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have not elected to buy, and to make them repurchase that product every month for their entire lives.