Moments ago, in a 2-1 decision, the 11th Circuit Court of Appeals struck down the individual mandate in the Affordable Care Act, ruling that Congress cannot “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.” The court kept the rest of the law enact. Some highlights from the decision:
— It is immaterial whether we perceive Congress to be regulating inactivity or a financial decision to forego insurance. Under any framing, the regulated conduct is defined by the absence of both commerce or even the “the production, distribution, and consumption of commodities”—the broad definition of economics in Raich… To connect this conduct to interstate commerce would require a “but-for causal chain” that the Supreme Court has rejected, as it would allow Congress to regulate anything.
— In sum, the 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 over inclusive 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.
The decision represents the first time a Democratic appointee — Judge Frank Hull — “voted to strike down the mandate“; Stanley Marcus, a judge nominated by President Ronald Reagan, wrote the dissent in the case. The case was brought by 26 states who challenged both the mandate and the constitutionality of the Affordable Care Act’s Medicaid expansion provision.
Previously, a federal appeals court in Cincinnati had upheld the mandate.