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