Today, the 11th Circuit Court of Appeals took a 2x4 to the back of the head of President Obama's sprawling and expensive health care scheme then did the Dougie while it lay on the ground, whimpering. Philip Klein has a couple salient quotes from the decision:
Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975-page Act. But 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.
It cannot be denied that the individual mandate is an unprecedented exercise of congressional power...
This is the case brought by the attorneys general of 26 states along with the National Federation of Independent Business. The upshot of that the court said in its 2-1 decision is that the individual mandate is unconstitutional but it made no decision about the rest of Obamacare. It opted to treat the individual mandate as severable, which is different from what Judge Vinson decided in January. That seems reasonable to me. The assumption of severability keeps judges from striking down entire laws when only small portions might be unconstitutional, which preserves the separation of powers. So now, we're left with two questions.
1) What will the Supreme Court, which is almost certain to take up this case, do with it? They could follow the lead of the 11th Circuit and sever the individual mandate from the rest of Obamacare or they could throw the whole thing in the dumpster. There's an outside chance they could go against the grain and rule the whole thing Constitutional, which would create a problem so messy that our grandkids will still be untangling it long after the New Obamacare Police have converted our elderly bodies into a bland but nutritious slurry.
2) How will the administration keep Obamacare alive without the individual mandate, which was supposed to serve as the main means of funding the whole operation? Unless there are a lot of people paying into the system while getting little to nothing out of it, there won't be any money to pay for those with pre-existing conditions or for more expensive care. The individual mandate was the President's way of forcing enough people into his system to pay for everyone, at least in principle.
Answers? Predictions? I think SCOTUS will follow the 11th Circuit here and knock down the mandate but leave the rest of the edifice to teeter until it collapses on its own or the adminstration finds some way to shore it up, but I'm not at all certain that'll be the outcome.
Note: It helps a lot of you imagine the post title being read excitedly by the late, great Howard Cosell.
