Court of Appeals finds ObamaCare individual mandate unconstitutional

Thomas Lifson
A second federal circuit court of appeals has spoken in the ObamaCare case, the one brought by 26 states. A split three judge panel for the Atlanta-based 11th Citcuit has found the individual mandate unconstitutional, but leaves the rest of the law intact, though crippled and financially not viable.

Jennifer Haberkorn of Politico:

The 2-1 ruling marks the first time a judge appointed by a Democrat has voted to strike down the mandate. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to strike down the mandate.

Judge Stanley Marcus, in a dissenting opinion, said the mandate is constitutional. He was also appointed by Clinton. 

This ruling all but guarantees  that the Supreme Court will review the case, as  the 6th Circuit Court of Appeals upheld the mandate in a similar suit six weeks ago.

Reuters quotes the decision

"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," a divided three-judge panel said.

Update. R. Clayton Strang writes: 

 Today the 11th Circuit Court of Appeals has declared the portion of President Obama's Job Killing Health Care Law requiring all residents of the United States to buy health insurance unconstitutional.  Of course it is!  While this is a great victory for America, we still have a long row to hoe.

We shouldn't be shocked that two federal judges ruled that the individual mandate is unconstitutional.  We should, however, be outraged that any judge thinks that it is constitutional!  Stanley Marcus, the one judge on this three judge panel who agreed with the Obama administration, wrote that the other two judges "ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy."  Let's stop here for a minute.  Let's all go back and read that one more time.

Have you read it again?  Do you catch what he said?  He is asserting not that Congress has the legal power to force us to buy a product or service, rather that they have that authority because it is "generally accepted" that they have the authority!  Marcus is telling us that simply because the power that Congress has seized has grown that We the People simply have to accept it.  It doesn't matter that Congress has absolutely zero Constitutional authority to do something.  They've done it!  They've taken the power!  It happens all the time so it must be fine, right?  Isn't that a bit like telling a murder that he won't be charged because the murder rate has gone up?

Might does not make right.  Just because something has been done, it doesn't necessarily follow that it is right.  We are a nation of laws.  Our Founders put in place a system that limits what our government can do, specifically to keep that government from running amok.  We, as a people, should insist that checks on governmental power be enforced.  No one in America, not individuals, not the Congress, not even the President, is above the law.

A second federal circuit court of appeals has spoken in the ObamaCare case, the one brought by 26 states. A split three judge panel for the Atlanta-based 11th Citcuit has found the individual mandate unconstitutional, but leaves the rest of the law intact, though crippled and financially not viable.

Jennifer Haberkorn of Politico:

The 2-1 ruling marks the first time a judge appointed by a Democrat has voted to strike down the mandate. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to strike down the mandate.

Judge Stanley Marcus, in a dissenting opinion, said the mandate is constitutional. He was also appointed by Clinton. 

This ruling all but guarantees  that the Supreme Court will review the case, as  the 6th Circuit Court of Appeals upheld the mandate in a similar suit six weeks ago.

Reuters quotes the decision

"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," a divided three-judge panel said.

Update. R. Clayton Strang writes: 

 Today the 11th Circuit Court of Appeals has declared the portion of President Obama's Job Killing Health Care Law requiring all residents of the United States to buy health insurance unconstitutional.  Of course it is!  While this is a great victory for America, we still have a long row to hoe.

We shouldn't be shocked that two federal judges ruled that the individual mandate is unconstitutional.  We should, however, be outraged that any judge thinks that it is constitutional!  Stanley Marcus, the one judge on this three judge panel who agreed with the Obama administration, wrote that the other two judges "ignored the undeniable fact that Congress' commerce power has grown exponentially over the past two centuries and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy."  Let's stop here for a minute.  Let's all go back and read that one more time.

Have you read it again?  Do you catch what he said?  He is asserting not that Congress has the legal power to force us to buy a product or service, rather that they have that authority because it is "generally accepted" that they have the authority!  Marcus is telling us that simply because the power that Congress has seized has grown that We the People simply have to accept it.  It doesn't matter that Congress has absolutely zero Constitutional authority to do something.  They've done it!  They've taken the power!  It happens all the time so it must be fine, right?  Isn't that a bit like telling a murder that he won't be charged because the murder rate has gone up?

Might does not make right.  Just because something has been done, it doesn't necessarily follow that it is right.  We are a nation of laws.  Our Founders put in place a system that limits what our government can do, specifically to keep that government from running amok.  We, as a people, should insist that checks on governmental power be enforced.  No one in America, not individuals, not the Congress, not even the President, is above the law.