Why the 11th Circuit’s Opinion on Health Care Reform Self-Destructs

Why the 11th Circuit’s Opinion on Health Care Reform Self-Destructs

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Like a tragic literary figure, the 11th Circuit’s opinion declaring the individual mandate unconstitutional is doomed to failure by its own internal contradictions.  What follows is a series of quotes directly from the opinion, paired to show how desperately the majority twisted logic in order to find its path to a unsupportable conclusion:

1.  On the key necessary and proper argument, the court obfuscated as follows:

The government’s argument derives from a Commerce Clause doctrine of recent [1995] vintage: . . . the “essential part of a larger regulation of economic activity” language in Lopez. . . . Raich [is the] the only instance in which a statute has been sustained by the larger regulatory scheme doctrine.

HOWEVER, the court was well aware that

The Supreme Court’s most definitive statement of the Necessary and Proper Clause’s function remains Chief Justice Marshall’s articulation in McCulloch v.Maryland: 17 U.S. (4 Wheat.) 316, 421 (1819).

2.  Wearing this historical and precedential blinder, the court framed the relevant test as whether the mandate is “essential” to the ACA’s overall regulatory scheme:

[W]e conclude that the Supreme Court’s “larger regulatory scheme” doctrine embodies an observation put forth in the New Deal case of Jones & Laughlin Steel Corp.: “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” . . . [The failure to purchase insurance] in no way “burdens” or “obstructs” Congress’s ability to enforce its regulation of the insurance industry. . . . The government’s assertion that the individual mandate is “essential” to Congress’s broader economic regulation is further undermined by components of the Act itself.

BUT, of course, “essential,” “burden,” and “obstruct” are not the operative tests.  Instead, the court itself explained earlier in its decision that a much more lenient rational basis test applies:

“the Necessary and Proper Clause makes clear that the Constitution’s grants of specific federal legislative authority are accompanied by broad power to enact laws that are ‘convenient, or useful’ or ‘conducive’ to the authority’s ‘beneficial exercise.’” . . . On the breadth of the Necessary and Proper Clause, the Comstock Court noted that The Supreme Court must determine whether a federal statute “constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” “[T]he relevant inquiry is simply ‘whether the means chosen are reasonably adapted to the attainment of a legitimate end under the commerce power’ or under other powers that the Constitution grants Congress the authority to implement.”

The court never invokes or applies this test, even though (and perhaps because) it is one that the government easily meets.

3.   On whether the mandate relates to commerce:

[W]e are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce–perhaps, in part, because it has never been faced with the type of regulation at issue here. . . . As an inferior court, we may not craft new dichotomies … not  recognized by Supreme Court doctrine. . . .

BUT, of course the decision was all about a new categorical limit:

[T]he Act is forcing market entry by those outside the market . . . Until Congress passed the Act, the power to regulate commerce had not included the authority to issue an economic mandate. Now Congress seeks not only the power to reach a new class of “activity”–financial decisions whose effects are felt some time in the future–but it wishes to do so through a heretofore untested power: an economic mandate. . . . [T]his distinction . . . in truth [] strikes at the heart of whether Congress has acted within its enumerated power. 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. . . . Never before has Congress sought to regulate commerce by compelling non-market participants to enter into commerce so that Congress may regulate them. . . . The individual mandate does not wait for market entry.

4.  On the slippery slope concern:

To connect this conduct to interstate commerce would . . .  allow Congress to regulate anything. . . . To give but one example, Congress could undoubtedly require every American to purchase liability insurance, lest the consequences of their negligence or inattention lead to unfunded costs (medical and otherwise) passed on to others in the future . . .

BUT, why is this any real concern, considering:

The fact that Congress has never before exercised this supposed authority is telling . . . Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority.  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 . . . .

5.  On the mandate’s fit with legislative purposes, the court complained that:

the individual mandate’s attempt to reduce the number of the uninsured and correct the cost-shifting problem is woefully overinclusive.

BUT, the court also criticized the mandate for being underinclusive:

Even if the individual mandate remained intact, the “adverse selection” problem identified by Congress would persist not only with respect to [the] eight broad exemptions, but also with respect to those healthy persons who choose to pay the mandate penalty. . . . Additionally, Congress has hamstrung its own efforts to ensure compliance with the mandate by opting for toothless enforcement mechanisms.

6.  The court thought the mandate is not necessary to regulate insurers because:

[T]he conduct regulated by the individual mandate–an individual’s decision not to purchase health insurance and the concomitant absence of a commercial transaction–in no way “burdens” or “obstructs” Congress’s ability to enforce its regulation of the insurance industry.

BUT, the court conceded there is universal agreement that the mandate is needed to combat adverse selection:

Distinguished economists have filed helpful briefs on both sides of the case. While they disagree on some things, they agree about the theory of adverse selection. They agree some relatively healthy people refrain from, or opt out of, buying health insurance more often than people who are unhealthy or sick seek insurance. This results in a smaller and less healthy pool of insured persons for private insurance companies.

AND, in an analogous regulatory arena (flood insurance), the court went to some length to explain that:

Without an “individual mandate,” the flood insurance program has largely been a failure. . . . One key reason for this low participation is not surprising. . . . People living in a flood plain know that even if they do not have insurance, they can count on the virtually guaranteed availability of federal funds.

7.  Finally, on the government’s burden of persuasion, the court reflexively said:

We, as all federal courts, must begin with a presumption of constitutionality . . . We are loath to invalidate an act of Congress, and do so only after extensive circumspection.

BUT of course how it really thought and reasoned was:

[T[he government has been unable, either in its briefs or at oral argument, to point this Court to Supreme Court precedent that addresses the[] constitutionality [or economic mandates]. . . . The government’s position . . .  affords no limiting principles in which to confine Congress’s enumerated power. . . . [T]he government’s insistence that we defer to Congress’s fact findings underscores the lack of any judicially enforceable stopping point . . . . At best, we can say that the uninsured may, at some point in theunforeseeable future, create [a] cost-shifting consequence. Yet this readily leads to a scenario where we must “pile inference upon inference” to sustain Congress’s legislation . . . . The government’s factbased criteria would lead to expansive involvement by the courts in congressional legislation, requiring us to sit in judgment over when the situation is serious enough to justify an economic mandate.

Mark A. Hall, J.D., is the Fred D. & Elizabeth L. Turnage Professor of Law at Wake Forest University School of Law. He is one of the nation’s leading scholars in the areas of health care law and policy and medical and bioethics and a contributor to Health Reform Watch.

This post first appeared at Health Reform Watch, the web log of the Seton Hall University School of Law, Health Law & Policy Program, and at Balkinization.

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85 Comments on "Why the 11th Circuit’s Opinion on Health Care Reform Self-Destructs"


Guest
Aug 14, 2011

“doomed to failure by its own internal contradictions.”
___

Interesting.

Shall I recount some of the jurisprudential contradictions proffered by none other than Legend-In-His-Own Mind SCOTUS Justice Scalia?

Were it only that a compelling weight of facts, evidence, and logic uniformly held the day.

Guest
DeterminedMD
Aug 14, 2011

“The fact that Congress has never before exercised this supposed authority is telling . . . Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. 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 . . . ”

If this was a Repubican agenda, which we did see by the way we declared war on Iraq who was not a direct threat to this country to begin, why is it we would be reading how outrageous and intrusive this legislation would be by writers like this? These hack defenders and apologists really are insulting at the end of the day, per this kind of rhetoric as above.

The Democrats only replicated the behaviors of their predecessors from 2000-2006 when they became a block majority in ’08, except here, they are declaring war on the very citizens they allegedly represent. Doesn’t anyone with half a brain paying attention to how PPACA is disrupting the country truly care of it’s true intent as these absurd and intrusive policy processes are being exposed after the slime House Leader made her disgusting comment of finding out what is in this legislation after it is passed? Yeah, only when these pathetic defenders and apologists are directly affected negatively will they then shrilly cry out how this is not going so well after all.

Well, we’ll see how it goes when the Supremes review and rule on it by early 2012 hopefully. Oh, by the way, if one of the Republican nominees to the court had a conflict of interest would we be reading in every lame stream media source how such Justice should recuse himself from the ruling. You think we’ll hear this about Kagan being there?

Don’t hold your breath too long, as after 30 seconds you’ll be straining to inhale!!!

Guest
Aug 14, 2011

“slime House Leader made her disgusting comment of finding out what is in this legislation after it is passed?”
___

You never pass up an opportunity to mischaracterize what she actually said.

I thought you were done here, btw.

Guest
DeterminedMD
Aug 15, 2011

Funny, you seem to be the only one with this crusade to protect Ms Pelosi, you think that hiding behind semantics of comments changes the intent of the comment.

Nice try, but how is it playing out in reality? Exactly as it was intended, we are finding out what is in the legislation as their calendar due dates arrive. Anyone else who is paying attention disagree with my interpretation?

Guest
Aug 15, 2011

I thought you were done here.

Guest
DeterminedMD
Aug 15, 2011

What are you sir, an endless loop?

When I stroll by and read posts like this, it is like an accident that has so much carnage, you have to look and ask questions.

Otherwise, having read some of the endless threads you and others pontificate in, I stay away from those like the plague.

Umm, you could ignore me, as I choose to do with you 95% of the time.

Guest
Aug 14, 2011

“The fact that Congress has never before exercised this supposed authority is telling . . . ”

The fact that Congress is choosing to do so now is equally telling. One has to start somewhere. It gets much easier after that one starting step.

Guest
nate ogden
Aug 15, 2011

“It gets much easier after that one starting step.”

Solving the cost issue of healthcare is easier now that Medicare has us in a 40 trillion hole? I would think helping 13% that needed it in 65 would be easier then 19% today and all the otehr problems it has created. If your first step is backwords you haven’t made the journey easier.

Guest
DeterminedMD
Aug 14, 2011

And you never read or hear how policy is made to dictate actions and options for lawyers. God forbid somehow that profession has to answer to a higher power. Which is why physicians need to finally realize that politicians have no freakin’ clue how to manage health care. As I have written over and over again, just strike as a group to deny routine care for just 1 week and watch the masses literally descend on the Capitol in DC to demand action.

What, will they jail us all and have nurse practitioners and physician assistants take over the health care for the country? Yeah, we’ll see how long the public would put up with that. Again, what, a week!?

It is coming to that kind of response by doctors to get the country to wake up and smell the septic pool that is Washington!!!

Guest
MD as HELL
Aug 15, 2011

You must buy a car. You have to get around somehow..

You must buy a house. You need to live somewhere.

You must buy a cemetary plot. Sooner or later…

Guest
Aug 15, 2011

And a cemetery plot as well.

Guest
MD as HELL
Aug 15, 2011

Right.

Guest
Aug 15, 2011

:)

Guest
tcoyote
Aug 15, 2011

All knocking the individual mandate does is make it more expensive for Congress to accomplish the same objective. “Necessary and proper” and the expansive interpretation of the Commerce clause are simply blank checks for the federal government to do what it wishes.

Losing the mandate does not cripple the law; states can enact it if they choose, or the feds can simply attach conditions to access to exchange subsidies, including more rigorous open enrollment policies, longer waitings or locking people out for a number of years who fail to enroll.

Given the unpopularity of this law, the Roberts Court will not pay a huge political price for knocking out the mandate, while leaving the rest of this sprawling mess of a law intact. The REAL problem is that even the uninsured don’t like this legislation, let alone the rest of the tax paying public.

Guest
MD as HELL
Aug 15, 2011

The uninsured will hate it the most. They are mostly uninsured by choice. For most of them that is the smart play.

Guest

I fear understanding Mark Hall’s lawyerly nuances is beyond my pay grade. However, here is my opinion on the Atlanta Appeals Court decision on the constitutionality of the individual mandate and the upcoming Supreme Court opinion, as expressed in my Medinnovation blog
The decision paved the way for a Supreme Court decision on the matter. This will probably occur in the summer of 2012, before the Presidential election. The decision will rank right up there with Gore vs. Bush, and will have the same election consequences.

If the Court declares the mandate unconstitutional, Obamacare goes down. Obama loses. If the Court decides the mandate in constitutional, Obama wins.

Which leads to this bit of doggerel.

That Obama’s fate depends on the Supreme Court’s direction,
And its effect on the November 12, 2012 Presidential election.

That it comes down to Obamacare and the economy,
Not to Perry, Romney, or political astronomy.

Guest
Aug 15, 2011

If the Supreme Court has any shred of decency, they will not accept this case before 2013, or at least not rule before the end of 2012. Considering that nothing kicks in before 2014, there is no urgency.
I think the Court should make a conscious effort to stay out of the, equally unconstitutional, business of appointing Presidents.

Guest
nate ogden
Aug 15, 2011

“If the Supreme Court has any shred of decency,”

Apparently decency is now measured by whats in the best political interest of liberals not whats right or best for the country.

“Considering that nothing kicks in before 2014, there is no urgency.”

Margalit there are some people here to see you;

Health Plans required to cover adult dependents up to age 26

Every health plan required to remove lifetime and annual limits

Kids under 18 that can’t get insurance becuase Obamaccare killed the market

Plans required to cover preventive services at 100% including the broad list just comming out

Everyone paying an extra 3-5% in premium from the few changs already enacted.

No urgency to see your bill struck down, there is incredible urgency on the part of everyone forced to deal with this mess.

Guest
Aug 15, 2011

Nate, this is not a liberal or conservative issue. Whatever you think about the constitutionality of the individual mandate, and I think it is unconstitutional, the Court should not interfere with elections one way or the other.

As to those “people” here to see me, I would like to remind you that contrary to common wisdom health plans are not “people” :-)

Guest
nate ogden
Aug 15, 2011

Romney would like to discuss that with you

just because you know how to make smily facers doesn’t make you cooler

Guest
Aug 15, 2011

You can make smile faces too type : – ) with no spaces between the characters and they will magically turn into a smile….
Besides Romney seems to have a perpetual smile on his face, so I thought I’ll contribute mine….

Guest
nate ogden
Aug 15, 2011

if my hair was as perfect as his I would have a perputual smile as well

Guest
DeterminedMD
Aug 15, 2011

It is about doing what is right, not what is politically or personally convenient. And besides, from my perspective this should be an 8 justice opinion, as Kagan will not be unbiased nor objective per her role in supporting this legislation’s passage before she was nominated to the bench.

And yes, I know, Scalia and Thomas are also not objective and impartial, but, they did not render an opinion on something they personally were involved in that affects the entire USA like this PPACA legislation.

It seems to be fair and impartial and responsible in a jurisprudience manner is incongruent with being nominated to be a judge!!!

Guest
nate ogden
Aug 15, 2011

“Considering that nothing kicks in before 2014, there is no urgency.”

Good thing I don’t get emails like this every day with things I have to do and spend money on now…..oh wait, I do get these every day and spend money on them.

The Administrative Simplification section of the Patient Protection and Affordable Care Act (ACA) requires health plans to adopt operating rules. According to the ACA, three sets of healthcare industry operating rules will be approved by the Department of Health and Human Services (HHS) and then implemented by the industry based on a series of deadlines occurring over the next five years.

If the bill is struck down will the DNC and Margalit reimburse all my cost?

Guest
Aug 15, 2011

I may be being unfair to the two distinguished judges who wrote the Eleventh Circuit opinion, but I suspect that their lengthy recitation of case law followed—rather than justified—their more gut-level reaction (also included in the opinion) of: “We are unable to conceive of any product whose purchase Congress could not mandate under this line of argument.”

Clearly, the government lawyers failed to persuade the Court that buying health insurance differs from other purchases. Yet, as I noted in a THCB post a couple of months ago, insurance IS unique, neither a tangible product nor a service, but rather the sharing of risk. Those who don’t share risk directly increase the costs of those who do.

Whatever the merits of the unique nature of insurance, the Obama administration is clearly now in a tight spot. They can appeal the ruling of the appellate panel to the full Eleventh Circuit in the hope of delaying any action by the Supreme Court (with the risk that they will lose again at the appellate level), or they can hope to be more persuasive at the Supreme level (with the risk that they will fail just in time for the 2012 election).

And, even if the administration is—against the odds, I suspect—successful in the Supreme Court, it will merely postpone the public (and political) outcry when the ACA’s penalties are imposed on those without coverage.

Guest
Aug 15, 2011

Good observations.

My guess would be 5-4 against at SCOTUS with respect to “individual mandate.” Implications of the lack of “severability” are another matter. The cynics assert that leaving the language out was no accident. I just don’t know. PPACA without the mandate would likely be a ghost law.

I called it “equal parts corporate welfare and outright (endlessly means-tested) welfare” early on.

Guest
MD as HELL
Aug 15, 2011

If is is such a great law then why not repeal EMTALA?

Guest
nate ogden
Aug 15, 2011

“Yet, as I noted in a THCB post a couple of months ago, insurance IS unique, neither a tangible product nor a service, but rather the sharing of risk.”

Insurance has always been a terribly inefficent way to provide healthcare to poor people. If Congress can mandate people buy healthinsurance to subsidize healthcare for poor people why not replace food stamps with food insurance? Instead of paying at the grocery store or restraunt you show your food insurance card. Rich greedy people will pay more and the excess funds can be used to pay for poor people to eat. Why do rich people get 4 star restraunts and the poor get fast food? Additoinally it would allow the government to track what people eat to make sure it is healthy. If the government is paying for your healthcare they have a right to make sure your eating healthy.

Housing insurance to replace Section 8, sounds good to me.

Just think how much more affordable flood insurance would be if people that didn’t live in flood zones also contributed?

Heck imagine if people that didn’t own homes were forced to buy flood insurance how well that would spread out the cost.

Health insurance is only unique in that congress hasn’t repeated the same istakes they made with Medicare and Medicaid with food, housing or anything else…….yet

Guest
Aug 15, 2011

Very good, Nate. I agree.

If health insurance is sharing risk, then just like sharing risk of being overrun by hordes of enemies, or risk of being poisoned by filthy water and filthy air, the direct risk to body and limb posed by disease must be shared through taxation mechanisms.
The reason these are different than food and housing is that various levels of quality in food and housing do not endanger life. There are no variations in need for national defense or need for clean air, and there are no variations in what is needed to survive severe trauma.
And I am not talking about massages and private rooms with big screen TVs here, Nate.

Guest
nate ogden
Aug 15, 2011

“The reason these are different than food and housing is that various levels of quality in food and housing do not endanger life.”

Tell that to the raw milk drinkers getting raided by swat teams and held at gunpoint.

Housing projects don’t endanger lives?

What are slum lords and why do we have laws protecting their tenants?

Guest
Peter
Aug 15, 2011

I would love to drop the mandate, that way I could wait until I was sick to buy insurance, which is guarantee issue by the way. I wonder if the insurance companies will argue in the supreme court for the mandate?

Guest
nate ogden
Aug 15, 2011

I think the more likly outcome would be that which befell children under 18, the individual health insurance market would just disappear. You would need to be part of a group to get insurance or take Medicaid.

It is also conceivable that the fully insured group market would also disappear due to the stringent underwriting guidelines and adverse regualtion.

Number 2 is to exciting professionaly to even ponder, chills of excitement

Guest
Aug 15, 2011

“You would need to be part of a group to get insurance”

I see this as an opportunity for a quick to act entrepreneur. Create groups that people can sign up for and purchase insurance together. Perhaps a non-profit community based co-op or something like that….

Guest
Nate Ogden
Aug 15, 2011

our under-regulated healthcare system has numerous laws against this

one party in particular wants to make sure Unions don’t have any competition thus the killing of AHPs for 15 years

it would have been incredibly effictive at lowering cost and decreasing the uninsured rate

Guest
Aug 15, 2011

Maybe they’ll relax the regulations now. I know some professional associations (like IEEE) are providing this type of service for their members. Do you know what makes them different?

Guest
nate ogden
Aug 15, 2011

There are a few makes to accomplish it;

Fully Insured Assoc plan is one, you go to Anthem or United and say I have 10,000 members and want to do a health plan. With this model your really not doing anything different then what carriers do every day. Its more a marketing ploy then a cost saving solution

Fronted plan would be next, fronted means you have a licensed insurance company issue the policies. Behind that someone else can take the risk. If you manage the risk better you can save money but you pay 5-10% for the paper/policy to front.

MEWA multiple employer welfare arrangement avoids the fronting paper but is only legal in a handful of states

MET Multiple employer trust is similar to MEWA but you have a trust that takes the risk and usually issues the polciies, also not allowed in many states.

what would be interesting would be to study which is worse, laxer regualtion of who can write insurance and take risk, some will fail and people will lose coverage and have unpaid claims or very strict rules which limit and imped creation of insurance companies but drastically increases the number of people that can’t get insurance. I think we have gone to far with regualtion to the point legit attempts to insure people are blocked not just questionable ones.

Guest
Aug 15, 2011

6-3 to uphold.

Kagen
Ginsberg
Breyer
Sotomayor
Kennedy
Roberts

vs

Alioto
Thomas
Scalia

5-3 if Kagen recuses.

From the wires: “…Orin Kerr, a George Washington University law professor, predicted Roberts and Kennedy both would likely end up voting to uphold the individual insurance mandate.

He cited an opinion by Kennedy in 1995 and the expansive view that Roberts recently supported of the power of Congress under the Constitution to adopt laws necessary and proper.”

Guest
MD as HELL
Aug 15, 2011

This law is not proper

Guest
Aug 15, 2011

What’s “proper” Constitutionally is what SCOTUS determines it to be. Everything else is just theory.

Guest
Aug 15, 2011

Y’see, what we need and want is not ACTUAL health CARE, we want umpty nine hundred inscrutable health care “PLANS.”

Guest
MD as HELL
Aug 15, 2011

The entire law needs to go. All of government benefit programs need to go.
They are all unconstitutional.

Guest
Aug 16, 2011

LOL…

It’s never enough for people like you to assert that a policy or program is unwise, ineffective, or otherwise wasteful. It’s always gotta be “unconstitutional!”

Simply a poignantly pouty stomp-your-feet pissed-off 6 yr old “You’re-Not-The-Boss-of-ME​!” philosophy.

Guest
MD as HELL
Aug 16, 2011

Except for the fact that they are all unconstitutional. I will stomp my feet when the rules are broken.

The entire premise of the constitution is that they are not the boss of me.

Guest
Aug 16, 2011

One hardly knows where to begin in the wake of such sophomoric simplistic complaints. Pointless to even try, I suppose.

Guest
Aug 16, 2011

Let me help you out here. In a nation of ~310 million people (nearly 100x what it was when they signed the Constitution) and a planet of ~7 billion people, you don’t get your way all the time.

You get one vote.

Moreover, with respect to “rights” properly not subject to plebiscite, your “rights” exist to the extent that the rest of society will defend them.

I know it’s fun to ignore the basics.

Guest
MD as HELL
Aug 17, 2011

It is fun to ignore the constitution, too, Bobby.

Guest

This law needs to be banned. There needs to be more companies like these.http://medicalinsurancetx.com/

Guest
jvire
Aug 16, 2011

How’s this for an internal contradiction:

The author downplays the slippery slope argument by pointing out that Congress, through a variety of events that have negatively impacted our economy and country, has never invoked the mandatory purchase of a product or service; while also pointing out that, ” The Supreme Court’s most definitive statement of the Necessary and Proper Clause’s function remains Chief Justice Marshall’s articulation in McCulloch v.Maryland: 17 U.S. (4 Wheat.) 316, 421 (1819)”, as support for the individual mandate.

The 11th Circuit’s Opinion stated that nothing that Marshall wrote gave previous Congresses the idea that such power existed. So what’s more likely: that the absence of mandating such purchases implies that it is beyond what Marshall intended, or that previous Congresses used restraint in exercising constitutional power?

Guest
Aug 16, 2011

Yeah. Well, here’s another question:

What would be a reasonable estimate of lives lost and health worsened given the diversion of all of these FTEs (barstool Constitutional geniuses aside) from actual care delivery to chewiing ad nauseum over this crap, this Cirque du Soleil jurisprudence?

Guest
MD as HELL
Aug 17, 2011

Do you have a point?

Guest
Aug 17, 2011

“It is fun to ignore the constitution, too, Bobby.”
___

Right. For people like you, “unconstitutional” simply means laws and SCOTUS decisions with which you disagree.

Far from ignoring the Constitution, it was a core element of my graduate study and thesis in the 1990’s.

For the record, I am no big fan of the PPACA individual mandate — a tortured “ends justify the means” proviso enacted to avoid facing the access issue head on.

None of these difficulties is exactly news. See Elhauge’s 1994 “Allocating Health Care Morally.”

Guest
MD as HELL
Aug 17, 2011

v
Very shallow for you to assail me without knowing much about me. Do you really think this law is constitutional?

Guest
Aug 17, 2011

“Very shallow for you to assail me without knowing much about me.”
___

That’s totally rich. I am an open book. You are not.