Why the 11th Circuit is wrong about the mandate

Given recent developments and debates, we don’t revisit the details of health care policy all that often, so when a big court ruling comes down — like the one from the 11th Circuit this afternoon — maybe a refresher is in order.

The legal argument in support of the Affordable Care Act — specifically the individual mandate that ran into trouble at the 11th Circuit — has always been straightforward: the Commerce Clause empowers the federal government to regulate interstate commerce; the American health care system is interstate commerce; and the Affordable Care Act regulates the health care system. Ergo, the ACA fits comfortably within the confines of the Commerce Clause.

Today’s 2-1 ruling (pdf) didn’t see it this way.

[T]he individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. […]

The individual mandate also finds no refuge in the aggregation doctrine, for decisions to abstain from the purchase of a product or service, whatever their cumulative effect, lack a sufficient nexus to commerce. [emphasis in the original]

The 11th Circuit, by the way, was perfectly comfortable with the legality of the rest of the law, and was comfortable with the Affordable Care Act continuing to exist sans the one mandate provision.

So, what’s the problem with today’s ruling? The reasoning is all wrong. Is the mandate “wholly novel”? That’s certainly open to some debate. The notion of government-mandated purchases is hardly foreign — existing federal laws require millions of homeowners, for example, to purchase flood insurance. Nuclear power plants have to purchase liability insurance, whether they want to or not. The Civil Rights Act mandated businesses engage in commercial activity that owners found objectionable. George Washington signed a law requiring much of the country to purchase firearms and ammunition. John Adams and Thomas Jefferson even supported legislation that required private citizens to pay into a public health-care system, and included a “regulation against a form of inactivity.”

Does the rationale behind the mandate point to “potentially unbounded” state power? That’s not even a legal argument — courts can’t strike down provisions within laws because they’re afraid it might lead to other, imaginary laws they may not like in the future.

And what about the notion of compelling people “to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives”? Most of this is needlessly melodramatic; it ignores the fact that subsidies will offset the “expensive” insurance; and continues to draw political conclusions rather than legal ones.

Also note the italicized word in the ruling: it’s not commercial activity is people “abstain from the purchase.” This is, of course, the “inactivity” complaint.

Yes, there may be folks who don’t want to buy insurance, and they would be penalized under the law. But under our system, those folks still get sick, still go to the hospital with medical emergencies, and — here’s the kicker — still get care. As you may have noticed, for quite a while, it’s been one of the right’s favorite arguments: the uninsured can always just go the emergency room and receive treatment, whether they have insurance or not.

Of course, when the uninsured get this care, and can’t pay for it, the costs are passed on to the rest of us — it makes the entire system more expensive, with hospitals and medical professionals providing care without compensation from the patient. The 11th Circuit suggests those who “abstain” from making a purchase aren’t affecting the commercial marketplace, but those who would choose not to get coverage have a significant impact on the larger health care system, which is precisely why the notion of a mandate enjoyed broad, bipartisan support up until late 2009. There was never any doubt as to its constitutionality.

This is the sort of ruling that not only relies on weak, politically-motivated reasoning, but also “ignores 60 years of precedent.”

And so a nation turns its lonely eyes to Justice Kennedy.