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Right Turn
Posted at 03:30 PM ET, 08/12/2011

11th Circuit on ObamaCare (Part 2)

As I sift through through the opinion, there are several additional portions that catch my eye.

First, just as many of us argued, the 11th Circuit held that the fact that health insurance is different from other products (and each of them different from all the rest) is not a legal argument at all, let alone ground for preserving the individual mandate:

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.

I must admit it is heartening to have the elite left’s arguments given the back of the hand.

The court also smacked down the government’s argument that this is a tax and therefore constitutional. The key passage:

The argument that Congress need not employ the label of “tax” or expressly invoke the Taxing and Spending Clause in order to enact a valid tax is surely true, insofar as it goes. . . . The problem with the claim, however, is not that Congress simply failed to use the term “tax,” or declined to invoke the Taxing and Spending Clause when explaining the constitutional basis for enacting the individual mandate. Rather, Congress repeatedly told us that the individual mandate is a “penalty” and expressly invoked its Commerce Clause power as the foundation for the mandate.

And finally, on severability, there is an extremely long and detailed argument, the nub of which is this: there is a grab bag of provisions in the bill that don’t have much to do with the individual mandate and can be preserved: “While such wholly unrelated provisions are too numerous to bear repeating, representative examples include provisions establishing reasonable break time for nursing mothers, 29 U.S.C. § 207(r); epidemiology-laboratory capacity grants, 42 U.S.C. § 300hh-31; an HHS study on urban Medicare-dependent hospitals, id. § 1395ww note; restoration of funding for abstinence education, id. § 710; and an excise tax on indoor tanning salons, 26 U.S.C. § 5000B. . . . In light of the stand-alone nature of hundreds of the Act’s provisions and their manifest lack of connection to the individual mandate, the plaintiffs have not met the heavy burden needed to rebut the presumption of severability. We therefore conclude that the district court erred in its wholesale invalidation of the Act.” Bet you didn’t know all that was in there.

Even on more-central issues such as the ban on denying coverage for preexisting conditions or guaranteeing coverage for the hard-to-insure, the court concluded: “In light of all these factors, we are not persuaded that it is evident (as opposed to possible or reasonable) that Congress would not have enacted the two reforms in the absence of the individual mandate. In so concluding, we are mindful of our duty to ‘refrain from invalidating more of the statute than is necessary.’ ”

As one might expect, statements from gleeful conservatives are flooding in. Senate Minority Leader Mitch McConnell’s comments were among the first: “Like countless other Americans, I welcome the 11th Circuit’s ruling against the individual mandate. Forcing Americans to buy health insurance approved by the government was an unprecedented, unwelcome, and unconstitutional expansion of federal power, and today’s decision only strengthens and adds more momentum to the efforts of those of us who are working to repeal it. Congress should repeal this costly and burdensome law and replace it with the kind of common sense reforms Americans really want.”

It is foolish to believe that we are at the end of the road on ObamaCare litigation. This, as both sides concede, is most certainly heading for the Supreme Court. But as in politics, in litigation is it always better to win than lose, and this opinion in its substantive heft and its outcome, is a boon to ObamaCare opponents.

By  |  03:30 PM ET, 08/12/2011

Categories:  Obamacare, law

 
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