After Striking the Mandate, Should the 11th Circuit Have Allowed the Rest of ObamaCare to Stand?


The law is the law.

Last week's 11th Circuit appeals court decision on ObamaCare was a victory for foes of the mandate: The three-judge panel voted 2-1 to uphold a lower court's decision to strike down the mandate as unconstitutional. And it was an especially important victory because it came in what is arguably the most important ongoing challenge to the law—the lawsuit filed by 26 state governments and led by the state of Florida. 

But it wasn't as much of a victory for critics of the rest of the law: Although the panel majority agreed with lower court Judge Roger Vinson's ruling that the mandate constituted a congressional overreach, they disagreed with his decision to strike down the entire law. Not only that, they left in place the provisions regulating the insurance market that depend most on the mandate—guaranteed issue and community rating, which require health insurers to sell to all comers and severely limit the ways in which they can price according to health history. 

Because the law lacks a severability clause, the court is required to make a decision when striking down any portion of the law: What would Congress have done had legislators known that the mandate was unconstitutional at the time of passage? The legal standard here, the opinion explains, is "whether 'it is evident' that Congress 'would not have enacted' the two insurance reforms without the individual mandate." The majority concludes that while it may be "possible" or "reasonable" that Congress would've declined to pass the two major insurance reforms in the absence of a mandate, it is not "evident."

I don't buy it. The mandate was last-resort solution that legislators agreed to after watching individual health insurance markets with guaranteed issue and community rating but no mandate sputter into death spirals. Given the mandate's longstanding unpopularity—in January of 2010, just months before passage, the mandate ranked among the two least popular provisions—it seems highly unlikely that Congress would've passed the mandate unless they felt it was absolutely necessary. 

Nor am I the only one who agrees that the mandate is a fundamental part of the law's regulatory scheme: In its motion to dismiss the states' suit against the health care law in the lower court, the Obama administration's lawyers referred to the mandate as "essential" on at least 14 occasions

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  1. “What would Congress have done had legislators known that the mandate was unconstitutional at the time of passage?”

    Ignore the constitution and pass it anyway?

    1. That was basically the exact thing I was coming in to say.

      That’s not a hypothetical situation. It just happened.

      1. It was a mixture: some knew it was unconstitutional, some are ignorant of what the constitution says, some are in severe denial that the constitution actually says things they find inconvenient, and some actually believe that the constitution means whatever the heck a given SCOTUS majority says it means, so long as they agree with that particular SCOTUS decision, and far too few of them actually respect the constitution as written and voted “no”.

        in short, knaves, thieves, and/or scoundrels.

  2. Jesus, how often do I have to do this?

      1. ProL is more correct.

          1. Puh-lease. I went straight to the scripture.

            1. You’re all wrong. The most appropriate song for the situation is this one.

  3. Of course Congress would have passed it. They gave up their majority to pass a watered-down version of what they craved. Sacrificing private insurance company viability would not only have been acceptable, it was desirable to too many of them.

  4. It’s great that we have a judiciary dedicated to the obliteration of morally and practically indefensible absurdities in the laws of the Republic. How fortunate are we!

    Oh, wait. Am I centuries too late? Damn!

    1. Yes you are. I was listening to a progressive station this morning that was trying to explain why Rick Perry was extreme. Apparently he made statements that Social Security and Medicare were unconstitutional and this proved that he couldn’t understand the constitution. Then the host proceeded to read the general welfare clause at which point I needed to turn off the radio.

      1. Teach me patience, Oh Guru, because I would have probably beaten the fuck out of the radio with the butt of my broken revolver, and then I’d have gone and paid for the repairs, because I wouldn’t be able to control myself.

        Although it’s so common, maybe I’ve become desensitized to that sort of bullshit.

        1. > < This close I tell you. Fortunately I didn’t punch the radio whlie turning it off while I was muttering something about admendment process and understanding plain language.

          1. “Amendment process”? “Plain language”? HA! Obviously, that sort of talk belongs in sloped-forehead-flyover-country regions, the ‘existential darkness’ between LA and Chicago and New York, which are the true civilized world.

            Bet you also cling to that Bible of yours and that hideous Assault Machine Gun Pistol Annihilation Evisceration Street Sweeping Child Murdering Black Person Hating Super Duper Killing Device (tm Brady Campaign), or the AMGPAESSCMBPHSDKD!

            /Shithead left-wing news anchor.

            1. Chicagoan, atheist and non-gunowner. Couldn’t hit the broadside of a barn with a gun if I tried. But I can still understand that old parchment.

          2. The problem with understanding plain language is that it limits you to what the words actually say.

            The beauty of treating the constitution as a “living document” is that you can read meanings into it that are not actually there.
            Instead of meaning what it says, it can mean whatever you want it to mean.

            This way instead of being constrained, you have unlimited power.

            1. You know perfectly well that your interpretation of what the Commerce Clause means requires explanation, not to say complicated self-serving historical revisionism and tortured definitions, beyond the mere words in the document.

              1. Shouldn’t you be sucking someone’s dick?

              2. Tony, what is difficult to understand in “to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes”? This is about standardizing trade between other sovereign nations and the individual states which were giving up a minimum of their own sovereignty according to the specific delegation of authority agreed to elsewhere in the Constitution.

                Seriously, to anyone coming in with a fresh mind, it is Wickard v. Filburn that requires “tortured logic” ( or the threat of an executive purge / packing of the judicial branch).

                1. I’m not saying the history of the CC is without controversy, but the whole reason for its existence was the failure of the Articles of Confederation, which didn’t grant commerce power to the federal government.

                  My general view is that as commerce becomes increasingly national (and now it is increasingly global), government’s scope should naturally increase, and we don’t have to change the wording at all, since as society has evolved more commerce has become less localized.

                  1. And I’d disagree with that. But then I don’t think current case law with respect to the first amendment is valid either.

                    Everyone knows that there is an obscenity exception to the first amendment. Except there isn’t. Not even close. The document clearly says “no law”, not “no law except..”. If we were to be true to the construct of the constitution we’d need to amend it to … what did you call it? … expand the scope of the government’s power to include regulating obscenity.

                    The same goes for most of what our government in Washington seems to deem essential (including some of my personal favorites, like medical research, NASA, particle physics labs…).

                  2. I’m not saying the history of the CC is without controversy, but the whole reason for its existence was the failure of the Articles of Confederation, which didn’t grant commerce power to the federal government.

                    The Articles of Confederation did not fucking fail. They worked — worked too well for the comfort of statists who wanted to expand government and take away freedom — and so they were replaced, by statists, with the Constitution, which granted some limited enumerated powers to Congress to meddle, and which have since been creatively interpreted to give Congress almost unlimited power to meddle.

                  3. “My general view is that as commerce becomes increasingly national (and now it is increasingly global), government’s scope should naturally increase,”

                    Complete non sequitur.

              3. He knows no such thing.

                From Wikipedia:

                “The significance of the Commerce Clause is described in the Supreme Court’s opinion in Gonzales v. Raich, 545 U.S. 1 (2005):
                ” The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887 and the Sherman Antitrust Act in 1890.”

                In short, it means one specific thing, and for about a century Congress more or less adhered to that very limited, enumerated power granted Congress , then statists like you tried to say it means something completely different and that it gives Congress virtually unlimited power to meddle in our lives — which it doesn’t.

                1. Without both a method and incentive to repeal bad legislation, new legislation will be the response to the unintended consequences of bad legislation.
                  The logical conclusion of this is legislation governing every aspect of our lives.

  5. I disagree on the severability issue. I think Exhibit A on whether COngress would have passed the law without the mandate is . . . the lack of a severability clause.

    Which wasn’t accidental. What I believe happened is that the only way they got the votes they needed was by striking the severability clause (which was in early drafts), so that bill was an “all or nothing” deal that couldn’t be, in effect, amended later by the courts.

    1. What other reason could there be? I agree completely. Naturally, the whole world–including the administration, Congress, and the Court, will pretend otherwise.

      1. Really, you’re going to rule out the explanation of stupidity (from Congress?) in favor of malice?

        1. Whether it was a dumb move or not, it was intentionally removed from the bill. There was likely a reason for that removal.

          1. Sure. But under the courts’ standard, it’s not “evident” that Congress is evil instead of and/to addition to just stupid. It’s “possible” that they’re only stupid.

            1. Let’s assume constitutionality. And a can-opener.

    2. Yep. The act of removing the severability clause is all the evidence an honest judge needs to see to rule the mandate can’t be presumed to be severable.

  6. Had the 17th never passed, would this monstrosity have passed the Senate?

    Being that more than half of the states are challenging it, I bet not.

    1. Fuck minarchistic republicanism, let’s just have ourselves A UNITARY DEMOCRACY WITH A SELF-SERVING, INDEPENDENTLY MOTIVATED POLITICAL SYSTEM! FUCK YEAH!


    2. Considering 38 states voted for the 17th Amendment, what does it matter?

  7. OK then.

    Van Jones is sitting in an office in Washington, D.C., talking about John McCain when, quite unexpectedly, he starts crying.

    1. Is it wrong of me to think that crying in public makes you a wuss? I’ll grant exceptions for death or dismemberment of loved ones, but past that, not much should be making you cry in public.

      Man up, nancy.

      1. Fuck you guys!

        BOO HOO HOO HOO!

      2. At the very least it should disqualify you from a leadership position.

        1. Reminds me of that Pearl-based attack sub that broached under a Japanese fishing boat, sinking the boat and killing a bunch of Japanese high school kids. I clearly remember the CO of the sub blubbering on the Today show. Even if he’d been absolved of all blame for the incident (he wasn’t, IIRC), the weepage should’ve been enough to enure he rode a desk into retirement.

    2. Absolutely expected. The only argument left for the left is an appeal to emotion.

      They want Obama “angry”, and “attacking” the GOP.

      This will get much worse as the election approaches.

  8. Yesterday, on The Five, Bob Beckel stated that anybody who argued the individual mandate was unconstitutional just wants to have the status quo and take food awway from little children and kick puppies… or something. Talk about the mother of all non sequiturs.

    And this happened in front of the regular neo-cons, without The Judge. Beckel becomes really unhinged when The Judge asks him a tough question.

  9. You know perfectly well that your interpretation of what the Commerce Clause means requires explanation,

    Of course it does. But it starts with a recognition that the authority to regulate interstate commerce does not encompass the regulation of intrastate commerce, or non-commerce of any kind.

    “Interstate” means actually crosses a state line, not could maybe cross a state line, or could affect something else that crosses a state line.

    “Commerce”, of course, means trade or exchange. Not production or consumption or use or manufacture.

    I realize that using actual definitions of actual words is frustrating to kleptocrats, corpocrats, quasi-fascists, socialists, nanny-staters, and authoritarians everywhere.

    Tough shit. Don’t like the words we got, amend them.

    1. I doubt you’re against universal healthcare schemes because the darn constitution doesn’t let you favor them. You just want extra credit for your policy beliefs, that’s my objection. I guess this particular CC issue isn’t decided yet, but imo there’s a strong case that healthcare and health insurance are interstate commerce no matter how you characterize them.

      1. Tony, most everyone here will admit to not liking the universal healthcare scheme, but we’re fighting with the tools that we have, and one of them happens to be the Constitution as it was written.

      2. I doubt you’re against universal healthcare schemes because the darn constitution doesn’t let you favor them.

        Non sequitur. Anybody’s political opinons on policy are irrelevant to the Constitutionality of the policy.

        Believe it or not, Tony, there are lots of things that I wish the feds would do, but they can’t because of the Constitution.

        For example, I would support on policy grounds a federal “shall-issue” concealed carry permit. But there isn’t an enumerated power for such a thing. Thus, I would oppose such a proposal on Constitutional grounds.

        1. Ummm, you don’t need an enumerated power to do this. The Second Amendment plainly says that the right to carry arms shall not be infringed, and Congress can and should pass legislation rebuking and repealing all the the gun control laws, including the ones saying you can’t conceal carry, or need the government’s permission to tote around a gun in public, concealed or not.

          Stripping non-enumerated powers out of law is an enumerated power, and in fact a duty, of every branch of government.

          1. The Second Amendment plainly says that the right to carry arms shall not be infringed, and Congress can and should pass legislation rebuking and repealing all the the gun control laws
            which are unconstitutional on face value, due to their infringement on the 2nd.

            It’s like asking the thief to make an accurate accounting of the amount he stole.

          2. Ummm, you don’t need an enumerated power to do this.

            I don’t think Congress can pass any laws that aren’t authorized by an enumerated power.

            Overriding unconstitutional state laws may be a very good thing, but I am reluctant to say that Congress has any “implied” power to do anything.

            They have a duty not to act unconstitutionally. I’m not sure this means they have a duty, and the authority, to assume the police powers of the states if they think (or are willing to assert) the states are exercising those powers unconstitutionally.

    2. “Don’t like the words we got, amend them.”

      Amen to that!

      There is a process for doing this, and it is NOT to have SCOTUS read things in that are not there, or out that are there. Pass it in Congress and let the States ratify it. We’ve done it before, sometimes quite elegantly (XIX for example). We’ve even fixed some stuff (XXI).

  10. Those guys really do seem to know what the deal is. Wow.


  11. It was something of an omnibus bill, no? I’d hazard a guess that had PPACA been about health care financing reform in its entirety, it would have been a simpler call (and it wouldn’t have passed at all).

    But would the court have un-socialized college lending or reversed the draconian IRS reporting requirements for $600+ purchase because it found the purchase mandate unconstitutional?

    1. The court could have struck the health care financing bits, but that would have required an exercise of judicial discretion to, in effect, amend the bill.

      As for the unrelated stuff, well, tough shit. If Congress wants it bad enough to pass it as a stand-alone bill, nobody is stopping them.

  12. What’s so hard for any of you to understand?

    The severability issue is a political question, not a legal or constitutional one.

    In essence, no judge wants to go down on the record as having struck down the signature legislation of the “First Black President”(TM). In fact, only one judge has thus far had the cojones to do his job, i.e., strike down an entire piece of legislation lacking a severability clause.

    Make no mistake. There are only two results when this reaches SCOTUS — either they will uphold the law in its entirety, or strike down the mandate alone. SCOTUS will NOT strike down ObamaCare. We’re stuck with it until it is repealed or the U.S. collapses.

    1. I suspect that you are correct. What is likely to happen is that the mandate alone will be struck down (I think the balance shifted against it this week), but that it will be 5-4 or 6-3 against striking down the whole law. Perhaps three conservative justices will concur in part and dissent in part, against severing the individual mandate. The result will vote to sever.

      The progressives new strategy is to hope that individual states will impose state level mandates, because if they don’t they will be screwed by the guarenteed issue and community rating provisions.

  13. “it seems highly unlikely that Congress would’ve passed the mandate unless they felt it was absolutely necessary. Nor am I the only one who agrees that the mandate is a fundamental part of the law’s regulatory scheme…”


    Hey, thanks for making the case-closed argument under the “necessary and proper clause,” Kool-Aid. Stop sniffing your own farts for a little while and maybe you can see it for yourself.

  14. Given that the mandate is the only thing that keeps the insurance companies on board with the law, yes, a removal of the mandate would effectively kill the entire law. Because the next logical step if there was no funding would be to restrict new customer intake by insurance companies, thus making even more people uninsurable.

  15. Congress almost certainly would NOT have passed it without the individual mandate. We know how razor thin the majorities were. Heck, they bypassed standard procedure in the final bill so that they could avoid letting anyone debate it AFTER modifying provisions in the bill that had bought votes to avoid a fillibuster under regular procedures.

    1. The loyal Democrats who voted for it would have voted for it regardless of details.

      They didn’t read it or know what was in it, so why would a change even that major have stopped them?

    2. Also note that plenty of Democratic-party majority states have voted in death spirals by including mandatory issue and community rating with no mandate.

      Yes, the morons would still have voted for it. Then, its failure would have been reason to go to single-payer to them.

      1. Actually a significant faction of progressive Democrats were against it. And voted against it. They wanted single payer and they wanted a “public option”.

        The bill would not have made it out of committee without Republican votes.

        What they did was tweak the bill to get just enough Republican votes to get past fillibusters in the House and Senate, and then remove those tweaks in conference committee and pass it under reconciliation so they could avoid the fillibusters on the second go.

        They really had to fuck a bunch of people in the ass to pass it, in other words. If those people had known that those provisions would be removed in the final bill, it would not have passed.

        1. What they did was tweak the bill to get just enough Republican votes to get past fillibusters in the House and Senate,

          Filibuster? House? Huh? And they got it past the Senate filibuster with no Republican votes, just 60 Senators who caucus with Democrats. (counting Lieberman and Sanders.)

          The faction of progressive Democrats would have fallen in line on the committee if need be. They did on final passage; it certainly required no Republican votes.

          Once it it passed with 60 Democratic caucusing votes, counting Lieberman and Sanders, they could arrange the rules to use reconciliation.

          The process you’re talking about is the normal one that occurs when the House or Senate makeup requires some bipartisanship. However, that’s not what actually happened. There were no tweaks requiring GOP votes to get past filibusters; they had the votes to break them with Dem-caucusing Senators alone.

          It would have passed anyway.

          Your story is the correct one to blame moderate GOPers for the inevitable betrayals that occur with other political lineups.

          However, it’s divorced from reality with what happened in the health care bill, which is that the Dems could ram it through entirely party line, even breaking the filibuster.

          For what actually happened, for once the moderate GOPers cannot be blamed. Instead, one can freely laugh at the silly conservatives and libertarians who claimed that it wouldn’t hurt that much for the Dems to have total power for two years, since the backlash would be so enormous.

          A temporary backlash for a permanent extension of government? Dems will take that, and did.

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