Eleventh Circuit Rules Individual Mandate Unconstitutional

By Chad Burchard | August 14, 2011

On Friday, August 13, a three-judge panel of the Eleventh Circuit Court of Appeals voted 2-1 in State of Florida v. Health and Human Services to uphold a lower court’s ruling that the individual mandate provision (requiring all Americans to buy health insurance) of the Patient Protection and Affordable Care Act (PPACA) of 2010 is unconstitutional. The decision is the latest development in a lawsuit that began last year when Florida, joined by several other states, filed in federal court seeking to overturn the new healthcare law.

Judges Joel F. Dubina and Frank M. Hull co-authored a lengthy majority opinion. Judge Stanley Marcus wrote a dissent defending the mandate’s constitutionality. The court held that Congress had no constitutional authority to enact the individual mandate, rejecting the government’s arguments that Congress’s right to regulate interstate commerce (Article 1, Section 8, Clause 3) and its taxing power (Article 1, Section 8, Clause 1) provided such authority.

However, the court did reverse the lower court’s wholesale invalidation of the Act, holding instead that the individual mandate could be severed from the other provisions. The court also upheld the Act’s expansion of Medicaid.

Opponents of the law praised the Eleventh Circuit’s decision. Texas Governor Rick Perry, who recently announced that he will seek the Republican nomination for president, issued a press release stating that “[y]et another federal court has recognized that the Obama Administration’s attempt to force each and every American to purchase health insurance is an egregious violation of our Constitutional rights.” [Press Release, Office of the Governor of Texas, Statement by Gov. Rick Perry on Federal Appeals Court Ruling on Obamacare, August 12, 2011]. Stephanie Cutter, an advisor to President Obama, posted a response on the official White House blog. “Today’s ruling is one of many decisions on the Affordable Care Act that we will see in the weeks and months ahead,” the post stated. “In the end, we are confident the Act will ultimately be upheld as constitutional.” [Stephanie Cutter, The Latest Health Care Court Case, The White House Blog, August 12, 2011]. Other challenges to the Act have also been working their way through the courts. Last year, Judge Henry E. Hudson of the Eastern District of Virginia held the individual mandate unconstitutional. The decision was appealed to the Fourth Circuit, but it has yet to rule on the matter. Back in June, the Sixth Circuit upheld the constitutionality of the individual mandate in Thomas Moore Law Center v. Obama, while just last week the Third Circuit dismissed a challenge to the law for lack of standing in New Jersey Physicians, Inc. v. President of the United States.

After summarizing the various aspects of the Act and upholding its expansion of Medicaid, the court turned to the individual mandate and the issue of its constitutionality under the Commerce Clause. The court commented on the “unprecedented nature” of the individual mandate and noted that while “[f]ew powers, if any, could be more attractive to Congress than compelling the purchase of certain products,” Congress had never before asserted such a right:

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.

Rather than resorting to compulsion, past Congresses had instead sought to encourage or discourage certain actions through financial incentives.

“[W]e find it illuminating,” the majority wrote, “that Americans have, historically, been subject only to a limited set of personal mandates: serving on juries, registering for the draft, filing tax returns, and responding to the census.” Such mandates, however, “are in the nature of duties owed to the government attendant to citizenship,” and “involve a citizen directly interacting with the government, whereas the individual mandate requires an individual to enter into a compulsory contract with a private company.” The individual mandate thus represents “a sharp departure from all prior exercises of federal power.”