by Todd Gaziano and Robert Alt Heritage.org Friday August 12, 2011

This afternoon, a three-judge panel of the U.S. Eleventh Circuit Court of Appeals in Atlanta ruled that the individual mandate in the Patient Protection and Affordable Care Act (PPACA), more commonly known as Obamacare, is unconstitutional. The carefully worded and thorough (over 300 page) set of opinions may be a bit mind-numbing for the uninitiated, but they are a joy to read for those of us who think the words of the Constitution actually mean something beyond whatever an activist Congress, President, and pliant judge want them to mean.

The decision is important for several reasons. First, it puts to rest the canard that justice regarding Obamacare is just a partisan enterprise, in which Republican-appointed judges rule one way, and Democratic-appointed judges rule another. Today’s decision was co-authored by Judge Frank Hull, a Clinton appointee both to the district court and the court of appeals.

The second is that the ruling all-but-guarantees that the Supreme Court will hear the case. Plaintiffs in another case from the Sixth Circuit have already asked the Supreme Court to hear their challenge to the identical provision that was struck down today. Although the Supreme Court takes only about 80 cases per year, any one of three factors would have made it likely that the High Court would hear this case: that a total of 28 states are challenging the constitutionality of a federal statute (26 in the instant case alone), that there is a split among the federal judicial circuits on an important issue of federal law, and that any one federal circuit court struck down any (even less important) federal statute. Now that all three conditions are present, the Court can hardly refuse to hear the case.

The third is that it is much more likely with today’s ruling that the High Court will hear the case in its next term which starts on October 3, with a decision likely to be handed down by the end of June 2012. Although the Obama administration has an option to ask the full Eleventh Circuit to rehear the case, en banc, that is unlikely to succeed for a variety of reasons, including that the 26 states and NFIB who won the decision today originally asked the entire Eleventh Circuit to hear the case because time was of the essence. The Obama administration opposed that request last spring. The circuit court is unlikely to agree to another delay given this prior history, including Florida District Judge Vinson’s rebuke of the government for its previous stalling tactics in the case when it was in the district court.

In short, the Obama administration has lost its battle to delay review of the individual mandate until after the 2012 election. Until today, there was at least a chance that the Supreme Court would pass on the case until after its forthcoming term, but now, with a split between the Eleventh Circuit and Sixth Circuit, the High Court will have little choice but to take the case and resolve the fate of the forced-purchase mandate. After over a year of delaying tactics, the Obama Administration has no more options to slow-walk the constitutional end-game for the mandate. Our best estimate is that the case will be argued either in late March or in April 2012. The Court will issue its decision near the end of its term in June, during the presidential candidate nominating season.

The Eleventh Circuit’s opinion is also a carefully conceived and tightly reasoned opinion that properly and narrowly addresses the issue before the court, without broad gestures or the irrelevant policy discussions in the Sixth Circuit’s opinion. More than merely a judgment, it is a persuasive and elegant affirmation of our constitutional structure, one that may even sway the high court’s liberal wing in its concern for liberty and political accountability.

Another significance of today’s decision is that it provides a roadmap for the Supreme Court on how to strike down the individual mandate provision and still save part of the Obamacare law. We believe that part of the court’s opinion today (on severability) was in error and that the entire Obamacare statute should be struck down as a matter of law. However, the severability issue is admittedly a closer call, and one that the Supremes are better suited to deciding than a lower court. Today’s opinion provides the High Court with another well-reasoned option. It also makes it even harder for those who want to mislead the public that the judges who voted to strike down the law were some sort of anti-government ideologues.

Finally, not only is the majority opinion thorough and rigorous, its conclusion is crisp and precise:

[T]he 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. The 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. This theory affords no limiting principles in which to confine Congress’s enumerated power….

The federal government’s assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure.

Bravo. In answer to Ben Franklin’s famous question: we still have a republic, and there is still great hope that lovers of liberty will be able to defend our republic with its noble and wonderful Constitution.

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