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.

Here's one more paragraph that gives you a sense of where the majority took this case. The majority wrote:

Given the attractiveness of the power to compel behavior in order to solve important problems, we find it illuminating that Americans have, historically, been subject only to a limited set of personal mandates: serving on juries, registering for the draft, filing tax returns, and responding to the census. These mandates are in the nature of duties owed to the government attendant to citizenship, and they contain clear foundations in the constitutional. Additionally, all these mandates involve a citizen directly interacting with the government, whereas the individual mandate requires an individual to enter into a compulsory contract with a private company.

Finally,the money shot from the Court:

In sum, the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future. That government's position amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life.

It goes on from there, page after page, but you get the gist. As did many of its predecessors, from both the left and the right, the opinion reads in places as much like a political manifesto as it does a judicial ruling about Article I of the Constitution. Had its language been made public just one day earlier, for example, you can bet your last pork-chop-on-a-stick that it would have been anthemized at the Republican debate in Iowa. Alas, it'll will have to wait for its days of glory (don't worry, Republican candidates, you'll be able to talk all about the oral argument of these ACA cases next spring, right about the time you are having your primaries).

If you are still reading you are probably anxious to hear from the dissent, which begins on page 208 (by the way, and not for nothing, 96 pages for a dissent also is too long).  First, 11th Circuit Court Judge Stanley Marcus, also a Reagan appointee (who was later promoted to the federal appeals bench by President Bill Clinton), notably agreed with his colleagues that the government's "tax" argument isn't going to wash. This, too, is notable and will likely be underreported this weekend. In the same way that the Medicaid expansion argument seems a loser for opponents of the new law, the tax argument seems a loser for the administration.

Judge Marcus called the majority's approach "wooden, formalistic, and myopic." He wrote:

The plaintiffs and, indeed, the majority have conceded, as they must, that Congress has the commerce power to impose precisely the same mandate compelling the same class of uninsured individuals to obtain the same kind of insurance, or otherwise pay a penalty, as a necessary condition to receiving health care services, at the time the uninsured seek these services. Nevertheless, the plaintiffs argue that Congress cannot do now what it plainly can do later. In other words, Congress must wait until each component transaction underlying the cost-shifting problem occurs, causing huge increases in costs both for those who have health insurance and for health care providers, before it may constitutionally act. I can find nothing in law or logic that so circumscribes Congress' commerce power and yields so anomalous a result.

And then this:

The plaintiffs and the majority would view the uninsured in a freeze-framed still, captured, like a photograph, in a single moment of time. They contend that Congress cannot constitutionally regulate the uninsured as a class at that single moment, because at that moment any particular uninsured individual may be healthy, may be sitting in his living room, or may be doing nothing at all... This blinkered approached cannot readily be squared with the well-settled principle that, in reviewing whether Congres has acted within its enumerated powers, courts must look at the nature of the problem Congress sought to address, based on economic and practical realities. [citations omitted by me]

Before he, too, opined his way (as only a dissenting federal appeals court judge can) around the "action/inaction" choice we have heard about so often lately, Judge Marcus wrote:

And virtually all of us will have the misfortune of having to consume health services at some unknown point for some unknown malady and at some uncertain price. Each of us remains susceptible to sudden and unpredictable injury. No one can opt out of illness, disability, and death. These, we all must accept, are facts of life. Thus, even if I were to accept the plaintiffs' distinction between activity and inactivity, the facts undermine the distinction here. The inevitable consumption of health care services by the uninsured is sufficient activity to subject them to congressional regulation.

I don't know how all the votes will fall when all these Affordable Care Act cases come to the Supreme Court. It's not hard to believe, for example, that Justice Anthony Kennedy will determine the matter with a "fifth" vote. But even if he does, and votes against the new law, I can't imagine him drafting a majority opinion that tracks the language of Friday's ruling. If he writes it, it will instead be closer to the center of the debate and certainly more moderate in its tone. The 4th Circuit ruling we are waiting for likely will go the other way and there is no way the 3rd Circuit is going to go this far out on this limb. So even if the anti-ACA warriors ultimately prevail in Washington, we may be witnessing the high-water mark of the legal fight against the Affordable Care Act. If that's the case, the cause went out with a blaze of glory and a ton of megabytes.

Image credit: Reuters

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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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