The 11th Circuit vs. the Health Care Law: A Manifesto

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Yet another federal court has ruled against President Obama's signature reforms. What does its massively long opinion tell us about the future of the Affordable Care Act?

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A bad week for the White House got worse Friday when a federal appeals court in Atlanta struck down the "individual mandate" portion of the Patient Protection and Affordable Care Act. Whatever else it portends, the 2-1 decision by a panel of the 11th U.S. Circuit Court of Appeals guarantees that the United States Supreme Court will have to resolve this legal dispute on its merits, probably by next spring. Even if they want to, the justices in Washington won't be able to duck this one.

It took the 11th Circuit 304 pages to announce its findings and conclusions in Florida et al. v. Dept of Health and Human Services: The "individual mandate" provision of the law, which requires the uninsured to buy health insurance, violates the Constitution because it is beyond Congress' power to regulate such activity. But other provisions of the new law, including its expansion of Medicaid coverage, which also were struck down by a Florida trial judge in January, are permissible. In other words, as bad as this ruling may be for supporters of the Affordable Care Act, it could have been much worse.

For those of you scoring at home, the tally now is 1-1. In June, the 6th U.S. Circuit Court of Appeals endorsed the constitutionality of the Care Act. Before the summer is through, we expect rulings on the new law from two more federal appeals courts, the 4th U.S. Circuit Court out of Virginia (which should have its ruling ready any day now), and the 3rd U.S. Circuit Court out of New Jersey. By Christmas, barring anything unforeseen, most of the merit briefs from the appeals of these appeals should be on file with the Supreme Court.

Good news then for Obamacare-istas and attorneys general of the following states: Florida, Iowa, Kansas, Maine, Ohio, Wisconsin, Wyoming, Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Pennsylvania, South Carolina, South Dakota, Texas, Utah and Washington. (Total electoral college votes for 2012 election: 253). They won Friday and now opponents of the health care reform literally from sea to shining sea may declare victory, at least for now.  

No fewer than the first 52 pages of Friday's opinion offer an "overview" of the facts surrounding the federal law (which, of course, says something about the complexity of the statute itself, regardless of what you think of the legality of it). By contrast, the 11th Circuit needed only the next 14 pages of its ruling to shoot down the notion that states were unlawfully burdened or "coerced" by the Medicaid expansion contemplated by the Care Act. This part of the ruling, which will be underreported over the weekend, is no small thing. It means that this part of the new law, as opposed to the "individual mandate" issue, may come to the Supreme Court with unanimous support from the lower federal courts.

But you aren't reading this because you want a 10th Amendment refresher or because you want to plumb the depths of Medicaid law. You want to know how these federal judges came down on the "individual mandate." You want to know if any of the esteemed jurists invoked the damnable "regulating broccoli" meme that has been so relevant through this endless series of opinions about the constitutionality of the new health care law. You want to know if this court agreed with you, in which case it's right, or not, in which case it's almost certainly wrong. So here goes.

Come with me, then, to page 109 of the ruling-- look, we are already more than one third of the way through this tome!-- for the first signs of the screed that is to come. 11th Circuit Judge Joel Dubina, a Reagan appointee, along with Frank M. Hull, a Clinton appointee, wrote for the majority:

We are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court's Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress' ability to regulate commerce-- perhaps, in part, because it has never been faced with the type of regulation at issue here.

Poof. Just like that, the activity/inactivity theme that has surrounded all of these health care cases is gone from the equation. Gone, then, is all the arguing about whether an individual's choice not to participate in health care insurance is an "active" or "inactive" one. Instead of plowing again through this well-trod pasture, Judges Dubina and Hull posited the case this way:

Properly formulated, we perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives.

These types of purchasing decisions are legion. Every day, Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as 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 money to spend 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 overarching regulatory goals, such as reducing the number of uninsureds and the amount of uncompensated health care.

Well, when you put it that way any regulation is suspect which takes money (and the choice to save or invest) away from Americans. To frame the question, naturally, is to answer it. But, directly and indirectly, the government all the time forces individuals to "redirect" their "funds" for "other purposes." This is true on a federal level and at the state level. If anything, then, the 11th Circuit may have just struck down the Affordable Care Act with a less viable legal theory than the one with which it was presented by U.S. District Judge Roger Vinson. And that's saying something.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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