Court Rules Against a Breathtakingly Expansive Mandate

The 11th Circuit decision last week was the most significant court ruling to date in the constitutional challenges to ObamaCare, and it virtually assures a U.S. Supreme Court hearing, most likely in the coming term.

The 11th Circuit court was very blunt in saying that the individual mandate is not only unconstitutional but “is breathtaking in its expansive scope.”

  • “…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 judges decided 2-1 that it is unconstitutional for Congress to compel citizens to purchase health insurance, in an appeal of the case brought in Florida by 26 states and the National Federation of Independent Business. Earlier, a 6th Circuit Appeals court ruled in a separate challenge that the mandate is constitutional. Several more cases are pending, but the split in the two appeals court decisions tees it up for resolution by the Supreme Court.

The overriding question is whether the Congress can continue to expand its economic and regulatory power under the Commerce Clause of the Constitution or whether it’s finally time to say, “Stop!”

The 11th Circuit said this is the time. If the Congress can compel us to purchase health insurance, it basically can force us to buy anything:

  • “…there is no reason why Congress could not similarly compel Americans to insure against any number of unforeseeable but serious risks.”

  • “Individuals subjected to this economic mandate have not made a voluntary choice to enter the stream of commerce, but instead are having that choice imposed upon them by the federal government…we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”

  • “…what Congress cannot do under the Commerce Clause is 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.”

If the individual mandate is upheld, the next step surely will be requiring that we all purchase ObamaCare’s long-term care insurance, especially since Health Sec. Kathleen Sebelius has acknowledged that program is “totally unsustainable” now.

The court said it could find no precedent for a mandate on individuals to purchase government-approved health insurance:

  • “Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products…[But even] in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.”

  • “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.”

And the court didn’t buy the government’s argument that the mandate is constitutional because Congress needs it for other provisions in the law to work.

  • “It simply will not suffice to say that, because Congress has regulated broadly in a field, it may regulate in any fashion it pleases.”

The court took several shots at the legislation itself, including the weak penalties for not buying insurance:

  • “Congress has hamstrung its own efforts to ensure compliance with the mandate by opting for toothless enforcement mechanisms.”

And the court made it very clear that it finds the law enormously complex.

  • “…to know whether a legislative act is constitutional?our task is to figure out what this sweeping and comprehensive Act actually says and does.” The 304-page decision devotes a total of 35 pages to describing what ObamaCare does — no small feat.

Some of the major take-aways from the 11th Circuit decision:

  1. It’s a penalty, not a tax. Not one of the courts which so far has ruled — no matter what the decision — has agreed with the Obama administration that the penalty for not buying insurance is really a “tax.” The government thinks calling it a tax is its home-free ticket. It’s unlikely to work.

    “It is not surprising to us that all of the federal courts, which have otherwise reached sharply divergent conclusions on the constitutionality of the individual mandate, have spoken on this issue with clarion uniformity. Beginning with the district court in this case, all have found, without exception, that the individual mandate operates as a regulatory penalty, not a tax,” the 11th Circuit wrote.

  2. The court severed the individual mandate, but that doesn’t mean the rest of the law is constitutional. News reports have said that because the 11th Circuit didn’t throw out the whole law, the rest of it is constitutional. WRONG! What the judges said was that they were not willing to go as far as U.S. District Judge Roger Vinson did in ruling that, if the individual mandate is unconstitutional, the whole law must fall. “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void,” Judge Vinson concluded. The 11th Circuit disagreed.

    There are many other provisions in the law which are being challenged individually — including the legality of the Independent Payment Advisory Board, and there are other potential challenges, including the government’s authority to force employers to provide insurance or pay a penalty. The court did not address those issues.

  3. The decisions cannot be attacked along partisan lines. Judge Jeffrey Sutton of the 6th Circuit was appointed by President George W. Bush and voted to uphold the individual mandate. In this 11th Circuit decision, Judge Frank Hull, appointed by President Clinton, voted to declare the mandate unconstitutional.

  4. The perspective of the law’s backers. Finally, we see a consistency among those who have concluded that the individual mandate is constitutional. In his 11th Circuit dissent, Judge Stanley Marcus repeatedly says that health care is uniquely important, that everyone will need it, and that it is therefore within the purview of Congress to regulate this form of commerce.

    The real question in all of these decisions is whether or not the U.S. Supreme Court will use this case to finally put the brakes on the expansive use of the Commerce Clause to regulate all forms of commerce and our behavior as we engage in that commerce.

As with so many other issues in this historic debate, it ultimately all comes down to freedom — and whether it will be lost or preserved pending decisions by the Supreme Court and the voters next year.

Small hr

ObamaCare: Many people claim that the shorthand term we use for the Patient Protection and Affordable Care Act — ObamaCare — is derogatory. The president was asked about the term “ObamaCare” this week during his Midwest bus tour.

He basically said he doesn’t have a problem with it. “Let me tell you, I have no problem with folks saying ‘Obama cares.’ I do care. If the other side wants to be the folks who don’t care, that’s fine with me.”

But later, he seemed to be tinged with regret over his signature law.

In a “listening tour” stop in Cannon Falls, MN, the president said:

“It should not be controversial, but it has become controversial.”

“You’ve got a governor who’s running for president right now who instituted the exact same thing in Massachusetts. This used to be a Republican idea, by the way, this whole idea of the individual mandate, and suddenly, it’s like they got amnesia.”

“It’s like, ‘Oh, this is terrible; this is going to take away freedom for Americans all over the world, all over the country.’ So that’s a little puzzling.”

Puzzling? I think not. Just listen to the judges.



Grace-Marie Turner on Why ObamaCare Is Wrong for America

At FreedomFest in July, Reason’s Nick Gillespie talked with Grace-Marie Turner of the Galen Institute about Why ObamaCare Is Wrong for America.
Watch now >>




Medicare-cutting panel should be blocked

Grace-Marie Turner
The Orange County Register, 08/15/11

Washington is as polarized as ever, but there is one area of growing bipartisan consensus: Lawmakers on both sides of the aisle are coming together to oppose a controversial board created by last year’s health care overhaul law. The Independent Payment Advisory Board was created to take difficult decisions about cutting Medicare spending out of the hands of legislators and give the powers to a panel of appointed, independent experts. If left in place, the IPAB will have the power to stifle innovation and harm seniors’ access to medical care. There’s little doubt that IPAB will fail. As lawmakers look for ways to make Medicare sustainable for the future, they can look to the Part D model of competition and choice.

Read More »

Congress must act quickly to halt this power grab by unelected technocrats

Grace-Marie Turner
Canada Free Press, 08/04/11

IPAB stands for everything that is wrong with ObamaCare — taking power away from doctors and patients and putting it in the hands of elite experts who have virtually no accountability to patients or voters. It will have power over hundreds of billions of dollars in spending with little or no accountability to voters. And their approach to holding down Medicare spending will certainly default to making deeper and deeper reductions in payment rates to providers that will threaten access to care for seniors.

Read More »

The Colorado Health Symposium’s Debate Over Repealing and Replacing the ACA

Grace-Marie Turner
Health Affairs GrantWatch, 08/03/11

Grace-Marie Turner participated in a debate earlier this month before the Colorado Health Foundation’s annual meeting in Keystone, Colorado. Len Nichols, T.R. Reid, Jon Caldara, and Grace-Marie debated whether or not the Affordable Care Act should be repealed and new approaches to health reform explored. In a piece reporting on the debate for Health Affairs, she argued that while we do need health reform, the ACA builds on dysfunctional systems in both the private and public sectors, and will cause a cascade of negative consequences.

Read More »

A Health Spending Crisis

Grace-Marie Turner
National Review Online: Critical Condition, 07/29/11

The debt crisis is a health spending crisis, plain and simple, and real change will take much longer. Government spending on health care entitlements will bankrupt this nation unless we reform these programs. And ObamaCare’s new entitlement programs will make the problems much, much worse.

Read More »

Accountable Care Organizations: ObamaCare’s Magic Bullet Misfires

John S. Hoff
The Heritage Foundation, 08/10/11

ObamaCare uses Medicare reimbursement as an incentive to create accountable care organizations (ACOs), which the federal government has decided are the way to deliver quality care at lower cost. Proposed regulations by CMS are largely confusing, impenetrable, and inconsistent. They give CMS detailed control over ACOs and the providers who participate in them, including censorship of ACO communications with Medicare beneficiaries. CMS’s effort, launched by ObamaCare, to use the leverage of Medicare reimbursement to impose and control a favored model of health care delivery is bound to fail, but only after increasing the angst of providers and patients and dissipating large amounts of resources — money, time, and brainpower. It blocks the development of other ideas for reforming health care delivery. ACOs are fatally flawed and cannot be fixed by merely changing the proposed regulations.

Read More »


Will Health Care’s Long Boom Go Bust?
Thomas P. Miller, Real Clear Markets, 08/17/11

The American People Deserve Action
Joseph Antos, The American Square, 08/16/11

Health Spending Projection Spin Cycle: Rinse And Repeat, Or Reset?
Thomas Miller, Health Affairs Blog, 08/11/11

Can ObamaCare Survive an Unconstitutional Mandate?
Merrill Matthews, Forbes: Right Directions, 08/15/11

The Latest ObamaCare Assault On Health Care Innovation
Sally C. Pipes,, 08/16/11

Pass the Deal — But Start Preparing Now for the Next Round
James C. Capretta, National Review Online: The Corner, 08/01/11

Unhealthy Debt
James C. Capretta and Yuval Levin, The Weekly Standard, 08/08/11

The Debt Deal Will Undo ObamaCare
Joseph Antos, The American, 08/04/11

The Debt Ceiling Deal: Kicking the Can Down the Road
Joseph Antos, Health Affairs Blog, 08/02/11

Majority of Large Employers Revamping Health Benefit Programs for 2012, National Business Group on Health Survey Finds
National Business Group on Health, 08/18/11

An Offer You Can’t Refuse: Estimating the Coverage Effects of the 2010 Affordable Care Act
Richard V. Burkhauser, Sean Lyons, and Kosali Simon, Employment Policies Institute, 07/11

Cadillac Coverage: The High Cost of Public Employee Health Benefits
Josh Barro, Manhattan Institute, 07/11

Healthcare partnership pays big dividends
Duke Helfand, Los Angeles Times, 08/01/11

Where’s Your Budget, Mr. President?
Rep. Paul Ryan, The Wall Street Journal, 08/03/11



Is Medicare More Efficient Than Private Insurance?
John Goodman and Thomas Saving, Health Affairs Blog, 08/09/11

Response to John Goodman and Thomas Saving on Medicare’s Efficiency
Thomas P. Miller, Health Affairs Blog, 08/10/11

Medicare Solvency: How to Get There
Paul Winfree, The Heritage Foundation, 08/09/11

Medicare End-of-Life Counseling: A Matter of Choice
Darius Lakdawalla, Dana P. Goldman, Anupam B. Jena, M.D., and David B. Agus, M.D, American Enterprise Institute, 08/11

A Recipe for Reform: Success of Consumer-Driven Principles in Medicare Programs
Kathryn Nix, The Heritage Foundation, 08/10/11

Medicare prescription drug premiums will not increase, more seniors receiving free preventive care, discounts in the donut hole
U.S. Department of Health and Human Services, 08/04/11



Ballot Initiative Would Repeal RomneyCare’s Individual Mandate
Thomas P. Miller, National Review Online: Critical Condition, 08/05/11

Newly Insured In Mass. Continue To Use Community Health Centers
Phil Galewitz, Kaiser Health News: Capsules, 08/08/11

Windfall for Massachusetts hospitals is questioned
Ricardo Alonso-Zaldivar, Associated Press, 08/04/11



Remedy for U.S. drug shortages eludes hospitals, lawmakers
Michael Booth, The Denver Post, 08/07/11

Pharmaceutical Companies’ Variation Of Drug Prices Within And Among Countries Can Improve Long-Term Social Well-Being
Frank R. Lichtenberg, Health Affairs, 08/11

A Risky Proposition: How Opening the U.S. to Foreign Medicines Will Put American Children at Heightened Risk
The Partnership for Safe Medicines, 08/11



Health Savings Accounts Rise to More Than $11.7 Billion in Total Deposits in June
Bradenton Herald, 08/01/11

States Moving Toward HDHPs
Katie Kuehner-Hebert, Human Resource Executive Online, 07/29/11



Third Annual Freedom Conference
Steamboat Institute Event
August 19-20, 2011
Steamboat Springs, CO
Grace-Marie Turner will participate in the “Fixing Medicare and Strengthening America: A Health Care Reform Toolkit” panel at 9:10am on Saturday, August 20.

Martin Luther King, Jr. Health Equity Summit
Institute for the Advancement of Multicultural & Minority Medicine Event
August 22-23, 2011
Washington, DC

Medicare Part D Drug Benefit: Five Years Later–Is It Working?
Hudson Institute Event
Thursday, September 15, 2011
12:00pm – 3:00pm
Washington, DC

Everything You Wanted To Know About ObamaCare Educational Workshop
Lehigh Valley Coalition for Health Care Reform Event
Saturday, September 17, 2011
1:00pm – 5:00pm
Center Valley, PA
Our new book, Why ObamaCare Is Wrong for America, will be on sale at this event.