Legal Commentary

FL Federal Judge Rules Individual Mandate Unconstitutional, Strikes Down Health Bill

By Big Tent Democrat

Finding the individual mandate unconstitutional and not severable from the health bill, a Florida federal judge has struck down the health bill. The Opinion (PDF):

The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause. [. . .] It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. [. . . T]he individual mandate regulates inactivity.

But what of the Necessary and Proper Clause? The judge has the chutzpah to cite McCulloch v. Maryland:

[S]hould congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. McCulloch, supra, 17 U.S. at 421, 423.

Is the individual mandate "prohibited" by the Constitution? Is it being use to accomplish an object not intrusted to the government? This citation is nonsensical. The judge argues:

[T[he means used to serve [the health bill's] end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” [.. .] The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers. As the previous analysis of the defendants’ Commerce Clause argument reveals, the individual mandate is neither within the letter nor the spirit of the Constitution.

This reasoning turns McCollough on its head. The issue is not whether the Constitution empowers Congress to enact an individual mandate, but rather whether the object of Congress' use of the individual mandate is a purpose permitted by the Constitution. The judge concedes the object is Constitutional and that the Constitution does not prohibit an individual mandate. Thus, the reasoning even this judge applies compels a finding that the individual mandate is in fact constitutional.

In the end, the judge bootstraps the individual mandate to declare the entire health bill unconstitutional because, the judge argues, the mandate is essential to the functioning of the entire scheme. How this squares with the mandate not being "necessary and proper" is beyond me.

The decision however, has a better chance of succeeding in higher courts precisely because of the non-severability decision. The insurance companies will be happy with this decision, as opposed to the Virginia decision which struck down the mandate but not the health bill.

That said, I doubt any of these decisions survive. But it would be ironic if the wonks' love of the mandate ends up killing the health biil.

Speaking for me only

Full post as published by TalkLeft on January 31, 2011 (boomark / email).