Civil Disagreement: 11th Circuit vs. Obama
Posted by Bruce Ramsey

Civil disagreements, with Lynne Varner and Bruce Ramsey of the Seattle Times editorial board, is an occasional feature of the Ed Cetera blog. Today the two take up the 11th Circuit Court of Appeals' ruling on the Obama health care law.

Lynne Varner:Bruce, plenty for constitutional scholars and politicos to chew on in 11th Circuit Court of Appeals' rejection of the federal health law's individual mandate.

I’m heartened by Circuit Judge Stanley Marcus' dissenting remarks offering this reality check: It is an "undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries, and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy."

Televison's most lovable Mafioso, Tony Soprano underscored this brilliantly, albeit in another context, the time he told a lieutenant: "I didn't make the rules, they been there!" The Obama Administration didn't stretch the Commerce Clause's regulatory reach, it was stretched long ago and they merely took advantage of it to enact healthcare reform.

Outside of that, all today's ruling shows is a split among Circuits that makes a U.S. Supreme Court showdown all but guaranteed.

Bruce Ramsey: Lynne, when the conflict between Obamacare and the Constitution first became an issue, the Democrats dismissed the issue with a wave of the hand. It was a fringe thing, not serious, ridiculous. I quoted that response here, and argued differently, a year and a half ago, before any of the lawsuits were filed.

Lynne Varner: The Sixth Circuit Court of Appeals in Michigan in June upheld the law. One judge appointed by former President Jimmy Carter and a second appointed by George W. Bush agreed that, “Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms."

Many people approach this issue as a political or legal exercise. But it really comes down to policy. Requiring Americans to have health insurance addresses a costly problem in health care. New estimates puts the number of uninsured Americans at 50.7 million. Contrary to rumors that the uninsured are illegal immigrants, this fact-checking Web site notes the vast majority are American citizens.

There is a fallacy that the uninsured are the only ones hurt by their choice to go without coverage. Bruce, you and I pay for those without insurance who use the emergency room as their only health care. Hospitals that tried to absorb the costs of uncompensated care went broke. Now the costs are simply shifted to us.

One last thing, how about we jettison the moniker, Obamacare, unless you're conceding that President Obama alone cares about a country going broke in part because of its runaway health care costs.

Bruce Ramsey: I like "Obamacare." It is a way of saying that this issue is still exclusively identified with Obama and his party, and that if he doesn't get re-elected in 2012, and his party doesn't control the Senate, the law may be repealed. Further, that it may have to be repealed because a Supreme Court ruling irreparably damages it.

I had thought a Supreme Court ruling would come in 2012, during the presidential campaign. But Attorney General Rob McKenna said today that the federal government may request an en banc decision from the 11th circuit, and there are other cases in other circuits, and that the upshot is that the whole business will likely be settled in the 2012-2013 term. And that would be too bad for the presidential election.

Back to the ruling. You are interested in the policy, and the ruling was really not about that. It was about the Constitution's Commerce Clause ("to regulate... commerce among the states").

The question is, as the court wrote, "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." (p. 112)

And further, as AG McKenna noted, "the mandate also allows the Secretary of Health and Human Services to tell you what kind of insurance to buy."

Can the federal government do this?

It is true that the commerce power "has expanded exponentially" in the past century, as the dissenting judge said. That is, the courts have allowed the power to expand. The question is whether, if they allow this, there is any limit left. If there isn't, then James Madison's scheme is wrecked, the federal government is no longer a government of limited powers, and the entire rest of Article 1, Section 8 (the enumerated powers) doesn't make any sense. Why say Congress can raise money for an army and navy, or have a post office, if under the commerce power, Congress can do anything? There has to be some principle of limitation. Given the New Deal cases, there is not much left. But there has to be something. And if "interstate commerce" includes the decision not to buy health insurance, what's left?

The court wrote:

"We see no way to cabin the government's theory only to decisions not to purchase health insurance." (p. 125) In Footnote 103 the court said the government could use the same arguments about cost shifting to force every American to buy liability insurance.

The court also noted that in the previous Commerce Clause cases (Wickard, Heart of Atlanta Motel, Lopez, Morrison, Raich) Congress was getting at some activity. In this case the mandate forbids an inactivity--the decision not to buy something. The government is forced to argue that an inactivity affects commece--and what does that imply?

"The government's position amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therfore Congress may regulate them at every point of their life." (p. 130.)

I think the 11th Circuit got it right.

Lynne Varner adds:AG McKenna is staking out interesting ground on this. He sides with a legal challenge based, in part, on plaintiffs belief they have standing because the health law's forced expansion of Medicaid resulted in higher costs for ordinary citizens. On the other side of the coin, McKenna aspires to be governor and will be faced with the choice of paying for the uninsured through Mediaid/federal health law or paying for them as they come through emergency rooms and overtapped local clinics. A smart guy like McKenna ought to understand the realtiies of paying now versus later.

http://seattletimes.nwsource.com/html/e ... ircui.html