Patterico's Pontifications

8/12/2011

Obamacare Mandate Struck Down by Eleventh Circuit

Filed under: General — Aaron Worthing @ 4:06 pm



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

You can read the (very long) opinion here, but here is the headline.  It was a 2-1 decision.  The mandate was found unconstitutional, but also it was found to be severable, unlike the opinion below that decided that without the mandate the entire thing might never have been passed.

There are several interesting things to note here.  First, you might remember from before we noted that there were two Clinton appointees on the panel and one nominated by the elder Bush.  I also wrote at the time:

[David Freddoso] also notes that “Marcus was appointed to the district court by President Reagan before being bumped up by Clinton.”  So he might be more of a centrist.

In fact the dissent was written by Marcus, so he would be termed the “loony liberal” (note: I am joking) of the panel, all of which serves as an object lesson in how you should never allow yourself to think a certain outcome is a foregone conclusion dictated by who happens to nominate the judge.  People are simply not that controllable or predictable, especially when they have a lifetime appointment.

It also torpedoes the left’s claim that only republican nominees have had a problem with the mandate.  Sweet.

As for the reasoning itself, we have been over this ground many times.  I think what is interesting about it is that they are less interested in activity/inactivity, so much as finding a limit to the asserted power.  There is one particularly devastating part where they demonstrate that even Congress doesn’t seem to think it has this power, given that they don’t require people in flood plains to buy flood insurance.  After all, these people are regularly bailed out by the Federal Government, so it seems natural to ask them to get insurance; and yet the Federal Government does not.  Part of me smiled at that innovative argument.  And part of me thought, “don’t give them ideas.”

The opinion also contains a fairly comprehensive discussion of what the hell is actually in Obamacare, if you didn’t feel like reading all 975 pages of the actual statute.

[Posted and authored by Aaron Worthing.]

33 Responses to “Obamacare Mandate Struck Down by Eleventh Circuit”

  1. The sooner this gets to SCOTUS, the better; particularly if a decision were to come down next Summer or Fall.
    This is what, 2 for and 2 against in the Circuits?
    You have to wonder when the Court will announce that they have accepted it for review, and to reconcile the conflict among the various Circuits.

    Another Drew - Restore the Republic / Obama Sucks! (d5f13f)

  2. another

    actually i think it 1 for 1 in the circuit courts.

    Aaron Worthing (73a7ea)

  3. What would happen if the Supreme Court upholds this decision by striking out the Mandate but leaving the remaining portions of the Act intact?

    aunursa (9523b9)

  4. Apart from being conceptually the wrong way to look at health care reform (which is arguably a thing that should be seriously looked at, but then… “serious”? In D.C.? aaahh, who am I kidding), the Obamacare legislation is just plain pigshit stupid and batshit crazy, and needs to go by any means necessary: judicial reversal by the Supremes, or civil resistance/popular nullification, if it comes to that.

    It is a monument to stupidity, and spells the death of many crucial strands of the American way of being, should it be permiited to stand.

    It must not.

    d. in c. (cae88c)

  5. The POTUS is not having a good week.

    The Cheshirecat ^..^(____)~~~ (0cd6a2)

  6. this silly obamacare law thingy is guaranteed to promote contempt for both law and the government I think

    it’s really in everybody’s best interest that it get knocked down

    happyfeet (a55ba0)

  7. Utterly ridiculous that they found cause to potentially allow severability. This was a political decision.

    In practical terms, Obamacare dies in SCOTUS without the mandate. However, it is an absolute outrage that the government has not been found to be in contempt. What would happen to the State of Arizona or of Texas if they decided that they would continue to go forward with their immigration bills currently tied up in the Appellate Courts?

    The likelihood of the mandate surviving was near zero coming out of the District Court. Same holds true now. Where is the friggin injunction?

    Ed from SFV (7d7851)

  8. I heard comment that the mechanism of passage of the bill, as a budget reconciliation, is violated if the bill is allowed to become law with the mandate excised. If the mandate is stricken from the law, there goes the primary funding of the bill. If the funding of the bill is stricken, then the rest of the bill has a profound impact on the budget and can not be passed by the reconcliation process.
    Now I understand in general terms what I just wrote, but I don’t know how many lawyers dancing on the head of a pin it will take to decide how to handle the problem after the fact.
    But it does seem that even when the immediate outcome of a ruling is what you want, the risk of unintended consequences still is present. I like broccoli, Brussels Sprouts, and spinach, but not so crazy about rutabagas and turnips.

    So, people in flood plains who are wiped out get repaid by the feds under disaster relief? What about people and their California mudslides and wildfires? Do they pay an arm and a leg to insure their houses, or do they get public support too?

    MD in Philly (44383c)

  9. ==it’s really in everybody’s best interest that it get knocked down==

    Well, feets, for sure we know it won’t get knocked up–cuz everybody gets birth control pills for freeeeee!

    elissa (986262)

  10. Hmmm, I posted and see it on my computer, but it is not listed as a recent comment, nor does the total # include it.

    MD in Philly (44383c)

  11. Very good, elissa!

    Another Drew - Restore the Republic / Obama Sucks! (d5f13f)

  12. ___________________________________________

    It also torpedoes the left’s claim that only republican nominees have had a problem with the mandate. Sweet.

    Nothing pisses me off more than that a key portion of Obamacare would have to be enforced by the IRS. Or the one — and generally only — group that, because of the need to hire more tax-enforcement agents, would come out smelling like roses and lollipops if the debacle of sloppy-leftist healthcare legislation remains intact.

    To that I say “f’ ’em.”

    Mark (411533)

  13. It’s a shame about Marcus, but the bigger issue is
    the bill was designed without a severability clause, in part to deal with the Scott Brown race, yet they decided it was.

    Crassus (81c5c2)

  14. Crassus, did you pick your nick in response to Spartacus the troll? If so, LOL.

    Dustin (b7410e)

  15. Comment by MD in Philly

    I see two comments from you in this thread.

    Dustin (b7410e)

  16. Yes, I did,

    Crassus (81c5c2)

  17. Coming up: Spartacvs/Levi explains why this was the worst case of jurisprudence in recorded history.

    Icy Texan (bee204)

  18. Mr. Levi and Spartacvs wif a v are totally different people

    happyfeet (3c92a1)

  19. It would have been better if they just ratified Judge Vinson’s decision, but you can only go so far, with that selection of judges,

    ian cormac (81c5c2)

  20. Congressional R’s and the presidential candidates need to make the case (loudly) that to let that Sibelius lady continue to implement stupid rules and spend money we don’t have on setting up Obamacare (with all these court cases going against it and a sure trip to the supreme court) is a very wasteful and imprudent use of the citizens’ tax money. I hope Ms. Blackburn will overlook the run-on sentence.

    elissa (986262)

  21. I think you mean that it seems natural to TELL them to get insurance. A mandate is not a request.

    Amphipolis (e01538)

  22. Slightly O/T…
    Does anyone know if AZ filed an appeal to SCOTUS of the 9th-Circuit ruling affirming the District Court over AZ’s attempt to deal with illegal immigration?

    Another Drew - Restore the Republic / Obama Sucks! (d5f13f)

  23. There was a comment on Facebook from Gov Brewer that it was filed. I certainly hope that is right.

    PatAZ (da3db7)

  24. another

    if they haven’t, i am sure they will at any second.

    Aaron Worthing (73a7ea)

  25. I think the clock is running out unfortunately.

    Another Drew - Restore the Republic / Obama Sucks! (d5f13f)

  26. EMTALA, you’re welcome.

    Spartacvs (4576a2)

  27. The opinion also contains a fairly comprehensive discussion of what the hell is actually in Obamacare, if you didn’t feel like reading all 975 pages of the actual statute.

    Is this “required reading” for all Dimocrat members of Congress?

    ColonelHaiku (d1f5ff)

  28. Well, it’s always nice to see judges stand up against Democrat Party style National Socialism.

    Too bad they don’t do it more often.

    Dave Surls (dbeb9b)

  29. SpartacBS is masturbating furiously.

    DohBiden (d54602)

  30. It is frustrating for the spvrtless one.

    Another Drew - Restore the Republic / Obama Sucks! (eeb8e7)

  31. There is one particularly devastating part where they demonstrate that even Congress doesn’t seem to think it has this power, given that they don’t require people in flood plains to buy flood insurance. After all, these people are regularly bailed out by the Federal Government, so it seems natural to ask them to get insurance; and yet the Federal Government does not.

    Under the Supreme Court’s current interpretation of the Navigable Waters power, Congress could probably ban living in those areas without insurance.

    Milhouse (ea66e3)

  32. I heard comment that the mechanism of passage of the bill, as a budget reconciliation, is violated if the bill is allowed to become law with the mandate excised. If the mandate is stricken from the law, there goes the primary funding of the bill. If the funding of the bill is stricken, then the rest of the bill has a profound impact on the budget and can not be passed by the reconcliation process.

    That may be so, but it’s irrelevant. How Congress passed the law is nobody’s business but Congress’s. If the Speaker and Vice President pulled a fast one to circumvent the two houses’ internal rules, those houses may express their disapproval by censuring them. But no court can or will strike a law down merely because it ought never to have passed in the first place. (Except the contemptible “Judge” Sumi, that is.)

    Milhouse (ea66e3)

  33. Why are the unionbots protesting the DOE?

    They are racists for wanting to sitout the 2012 election.

    DohBiden (d54602)


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