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Appeals Court Panel Strikes Down Health Law Mandate

Posted on Aug 12, 2011
Flickr / wallyg

Many experts expect the U.S. Supreme Court to have the final say on the health care law.

A federal appeals court panel ruled Friday against the part of President Obama’s new health care law that required most Americans to purchase health insurance or suffer some penalty. The three-judge panel of the 11th U.S. Circuit Court of Appeals sided with 26 states that had sued to block the law. The White House condemned the ruling. —ARK

The New York Times:

A federal appeals court panel on Friday struck down the requirement in President Barack Obama’s health care overhaul package that virtually all Americans must carry health insurance or face penalties.

The divided three-judge panel of the 11th Circuit Court of Appeals struck down the so-called individual mandate, which is considered the centerpiece of the law, siding with 26 states that had sued to block the law. But the panel didn’t go as far as a lower court that had invalidated the entire overhaul as unconstitutional.

Government attorneys can — and likely will — ask the full 11th Circuit to review the panel’s ruling. They also can appeal to the U.S. Supreme Court, which many legal observers expect to have the final say on the issue.

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Anarcissie's avatar

By Anarcissie, August 15, 2011 at 7:59 am Link to this comment

The Commerce Clause doesn’t empower Congress, or any other part of the government, to compel individuals to do business with other private parties.  Nor does anything else in the Constitution, as far as I can see.  It’s not hard to imagine many evils growing out of such an extension of government power.

The idea that there is no alternative doesn’t hold much water, since Congress could have instituted Single Payer or could have provided subsidies (paid for from general revenues) for those unable to buy insurance due to insufficient income.

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Lafayette's avatar

By Lafayette, August 14, 2011 at 10:08 am Link to this comment

OM: The US government tried to defend itself by describing Healthcare as a “special case” so it could be exempt from the traditional limits of the Commerce Clause. The court asked “if we allow this, what prevents the US government from calling everything else a ‘special case’ if it wants to?”

Proper judgment given the nature of the commerce.

What may stymie ObamaCare is a law passed at the end of World War II, the McCarran-Ferguson Act, which exempts health insurance companies from the federal anti-trust legislation that applies to most businesses.

In fact, since then we have developed a private Health Care Insurance system that IS almost a trust. (Trust =  a large company that has or attempts to gain monopolistic control of a market.) Look at the US HC-insurance “competition map” here.

Does that map look like a dynamic and highly competitive market? One where competition surely keeps the price of insurance to a minimum?

That act should be repealed because it was a gift to Insurance Companies.

So, OM, now pull the other leg ...

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By California Ray, August 14, 2011 at 9:14 am Link to this comment

1. End MediCare and zero out its budget.
2. Authorize all persons eligible previously for MediCare to obtain health care services from the Veterans Health Administration to the same extent as U.S. military veterans.
3. Increase the budget for the Veterans Health Administration by an amount equal to 60%-70% of the prior MediCare budget.
4. Pocket the savings.

(And to those who will whine that the VA should be for veterans only, well it isn’t. Just ask any WWII merchant mariner.)

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OzarkMichael's avatar

By OzarkMichael, August 14, 2011 at 9:03 am Link to this comment

There are times in the heat of the moment we want something, when we move to obtain it the way is blocked.

It happens to us as children and we cannot understand why.. so we cry, or we insult those who block our way, or we wish them dead.

We are blocked from many things we want thoughout life, and one would hope as we grow older we deal with it in a more thoughtful and rational manner.

As grown-ups we are blocked from what we desire, but some childishly complain and moan and insult… as Lafayette does in his posts. Oh, Lafayette uses intellectual headers like “MY POINT” and “PRELIMARY EXPECTORATION” and “POST PRANDIAL REGURGITATION” and “PSS” but for all that he merely complains, moans and insults.

My first blush on this case a few months ago was that ‘it is important for the legislative work of Congress and the people not to be blocked by some local activist judge’, not because I liked the legislation(i did not) but because the process and the structure of how government works is more important. So I disagreed with the verdict at the time. Check the old posts.

Now that the same ruling was made in a higher court,  i take a second look, and start to delve into the reasoning. Admittedly I have no legal training, but as a citizen i want to understand it.

So, putting childish disappointment aside, the grown-ups in the room examined the ruling, and tried to understand precedent in the case, and the meaning of the “Commerce Clause”.

As follows:

Article 1 Section 8 “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

Thomas Jefferson explained it this way:

For the power given to Congress by the Constitution does not extend to the internal regulation of the commerce of a State, (that is to say of the commerce between citizen and citizen,) which remain exclusively with its own legislature; but to its external commerce only, that is to say, its commerce with another State, or with foreign nations, or with the Indian tribes.

The US government tried to defend itself by describing Healthcare as a “special case” so it could be exempt from the traditional limits of the Commerce Clause. The court asked “if we allow this, what prevents the US government from calling everything else a ‘special case’ if it wants to?”

The US government apparently didnt have a good answer, so the ruling was made against the individual mandate. Which sounds like a small thing, but the impact on the healthcare legislation is traumatic, as i pointed out before. Which is important enough that the court should have given in? No! The Constitution and this process are more important.

Our response to that ruling says as much about us as it does about the Justices who made the ruling. Those who dont care about our Constitution can have their say, and if they can wrap their moanings in high brow style like “GREAT EATERS!” and “Y’all, have a nice funeral ... !” it seems intellectual enough.

But to me, familiar with such posiers, unimpressed by headers in capital letters, and accustomed to insults, well, I know childishness when i see it.

Childishness says ‘drop dead’ when it doesnt get what it wants. Leftists want and insist on so much for ‘humanity’. That insistance echoes Robespierre’s slicing, and the rapport of a pistol shots in the back of the head for millions. One ought to bristle at the implications. 

‘Drop dead’ is a Leftist’s death wish against a tradition or a people that doesnt need for itself what you want for it, a childish desire for tyranny of your own will over and against the world.

The Left justifies itself by imagining a ‘Humanity’ which needs and wants that tyranny. Human beings themselves become insignificant compared to the ‘Humanity’.

When one person is forced up rough wooden steps to be executed in front of the crowd, or down into a dirt ditch to be shot in the darkness, strange how ‘Humanity’ never bleeds.

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Anarcissie's avatar

By Anarcissie, August 14, 2011 at 8:28 am Link to this comment

The Constitution probably doesn’t matter much, actually.  Look at Gonzales v. Raich—a total transgression of logic and common sense in service to a crime against humanity—one in which many politicians and bureaucrats have much invested.

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By phreedom, August 14, 2011 at 7:19 am Link to this comment

Though I vote as a democrat, presently, I always
thought the healthcare purchase mandate, “buy or
else”, was probably unconstitutional, though within a
framework that left the insurance companies firmly in
charge and guaranteed their profits and price fixing.
Absent of insurance companies in the system, their
actual disbandment, fully outlawing them as undue
cost of living monopolies,  and general national
quality of life threat,,, well, if the mandate word
was replaced with “national agreement initiative”,
somehow,  and be concerned only with the pure price
of delivering healthcare services, well then, such a
mandate could be worked out as a human right, and
work with heavy government subsidy in the name of
national security, and more so, as a necessary
component of the pursuit of happiness, supposedly
allowed for by the constitution,,  well then,,
“bring the concept on”,,otherwise it’s junk, and a

Just as it was when its’ local counterpart, its’
origin, was created by Romney for Massachusetts.

A mandate to require purchase of “health insurance”,
and not “healthcare services” is one thing, testimony
of a whacky and exploitative intentions all around,
but worse than it being unconstitutional, it is

These days when something is claimed to be
“unconstitutional”, it’s a fair bet it is actually
“unconscionable”, all around.

Rhuen Phreed
231 Park Drive, #40
Boston, Ma.

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By California Ray, August 14, 2011 at 6:51 am Link to this comment

Ever notice that no politicians are lining up to demand that the Veterans Health Administration hospitals and clinics be sold to private enterprise or that VA health care be delivered on a fee-for-service basis?

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Lafayette's avatar

By Lafayette, August 14, 2011 at 12:27 am Link to this comment


STG: The issue is; why are people sick?

Good question. And the answer is twofold: We are both an obese nation and overweight. (Obesity has been officially declared a pandemic. Not an epidemic, but a pandemic.)

According to the Center for Disease Control, about a third of our population is obese. (See for yourself here, on a state by state basis, if you like.) Another third of Americans are at least overweight.

So, what does that mean in a nation of Great Eaters? It means that we great-eaters are subject to the illnesses listed here.

And what does this all indicate? Try this on for size:
*  We have one helluva Health Care problem in the making as people get older and obesity-related illnesses become prevalent (if that is not already the case). Or, put more simply,
* A great many of us are literally eating ourselves to death.

Which is not a nice thought at all ...


But, hey, look at the bright side, BigAggie and the Food Industry thank you kindly for building their business over the past decades. Sure nuff, they are very, very grateful.

Y’all, have a nice funeral ... !


Why is this not a major political subject in constant debate? Because no politician ever got elected calling their constituency “fat assess”.

We just don’t want to know. Ignorance is bliss.

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By Memory Stick, August 13, 2011 at 10:52 pm Link to this comment
(Unregistered commenter)

Lafayette writes: “Which is why Obama tried to establish a Public Option during the negotiations of HC legislation, to get it started. But no - the Replicant Crazies stonewalled that notion to death..”

This PBS Frontline episode “Obamas Deal” proves that you are incorrect

Many people are simply terribly uninformed.

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Anarcissie's avatar

By Anarcissie, August 13, 2011 at 7:22 am Link to this comment

Because of a very successful employment of ‘miracle, mystery and authority’, the medical establishment of the U.S. has succeeded in creating an enormous and ever-growing problem of medical expense.

People could have chosen to deal with this problem in various ways.  They could have gone the anarchist-autonomist route and formed cooperative HMOs.  They could have demanded Single Payer, paid for through general revenues, which is socialism or Welfare depending on how you look at it.  Instead, under the guidance of Mr. O, they chose to have the government force the uninsured to buy insurance, in the theoretical hope that an expanded customer base will reduce price.  If it does, I think it will be the first time in the history of markets that merely increasing demand (at the point of a gun, so to speak) has led to lower prices.  It seems more reasonable to expect that with 40 million or so new customers, the industry will be able to raise its prices radically.

But this is the politics and economics of the matter.  It crosses the Constitution only because the Constitution does not empower the Federal government to compel the purchase of services from private parties.  However, since the proposed new system primarily benefits the rich, I expect the Supreme Court to approve of it.  Something absurd will have to be invented, as it was for the Drug War.

I am not sure I would say Leftists are ‘celebrating’—I certainly haven’t seen any celebrations—but progressives seem to be.  Perhaps it’s the redolence of authoritarianism that appeals to them.

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By SoTexGuy, August 13, 2011 at 4:23 am Link to this comment

The issue is; why are people sick?


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By Marian Griffith, August 13, 2011 at 2:40 am Link to this comment
(Unregistered commenter)

—-What do the Canucks know about Health Care that we Yanks can’t seem to understand ... ?—-

It can be summarised in one word: Humanity.
(You may substitute it for Altruism if you like)

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Lafayette's avatar

By Lafayette, August 13, 2011 at 1:02 am Link to this comment


Anar: it does seem to me that there is nothing in it as it stands that empowers the Federal government to force people to buy health insurance from private businesses.

Then try this on for size: The Federal government subsidizes corporate HC-insurance, bought from private insurers, by offsetting part of the cost. This offset, paid by the Treasury, come out of the National Budget and contributes to the National Debt. (It is also known as Corporate Welfare.)

Presume you work for a company that does not have any private HC-insurance that is made available to its employees in the manner explained above. Then as a taxpayer you are contributing to sustaining the Treasury subsidy of private health care insurance for companies, but you cannot benefit from that very same Health Care.

How do you rationalize the injustice of that unfairness? (Of course, the Roberts’ Supreme Court will find a way presumably to do so.) It is that Core Concept that underpins the universality of a National Health Care system. Any Health Insurance scheme must cover all citizens - or none at all. That’s the rule everywhere in Europe. (Believe me, I’ve checked.)

We, the sheeple, can lament about how we are being shafted about so many injustices in this “Great Nation” of ours. It wont do much good. Shafting is as shafting does.


Or we, the sheeple, can pick ourselves up and start acting like raging lions. It’s all up to you, boys ‘in girls. And no, it is not just that simple.

Which is why Obama tried to establish a Public Option during the negotiations of HC legislation, to get it started. But no - the Replicant Crazies stonewalled that notion to death.

You will thank them, I hope, for that injustice in next year’s elections.


Whilst we are on the matter, compare with ours the National Health Care system from that country just to the north of us here.

Excerpted from the above linked WikiP article:

Canadians strongly support the health system’s public rather than for-profit private basis, and a 2009 poll by Nanos Research found 86.2% of Canadians surveyed supported or strongly supported “public solutions to make our public health care stronger.”

What do the Canucks know about Health Care that we Yanks can’t seem to understand ... ?

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mrfreeze's avatar

By mrfreeze, August 12, 2011 at 10:29 pm Link to this comment

Two Things:

1) I’ve never had any illusions: “universal­” health care in the U.S. is a great “idea” but will never be properly implemente­d. There’s simply too much money to be made by the medical version of “The Shock Doctrine” (disaster capitalism­) in the current system. The insurance companies, health care providers and big pharma simply have too much power.
2) Unless universal health care is thought of as a human right, it will never work in this country.

Conclusion­: I sincerely hope that those of you who do not support or even believe in universal health care are saving up for the day when your number comes up, because most families are only 1 accident or one bad medical problem away from bankruptcy or worse. All this talk about what’s constituti­onal or not doesn’t mean a thing when your sick and need help.

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By Wade D. House, August 12, 2011 at 9:19 pm Link to this comment
(Unregistered commenter)

Let’s set the record straight. We spend $2.4 Trillion Per/yr. for Private Healthcare insurance that still let’s 54,000 Americans die without ins. or with ins. for that matted due to poor, cheap plans and Med. review Boards (HCI Death Panels).
The Government plan written by the HCI industry costs $1 Trillion over 10 years or $200,000 per year.
How can someone say we can’t afford $200,000 per yr. when we already spend $2.4 Trillion per year?
Who’s talking B.S.
Using the Govt’s and Industry cost figures, which are not in dispute, we could have health care for everyone in America for 20 years, with the money we already spend in one year. With a savings of some $48 Trillion dollars.
Wake up America. Do the Math!
The Government isn’t just lying to you.
They are actually telling you the truth. You just have to use your brain.
Wade D. House
True Democracy Party

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Anarcissie's avatar

By Anarcissie, August 12, 2011 at 9:15 pm Link to this comment

I know the Supreme Court can make the Constitution say anything, but it does seem to me that there is nothing in it as it stands that empowers the Federal government to force people to buy health insurance from private businesses.  This is new territory.

Ironically, Single Payer would obviously come under the General Welfare powers of the government, as long as it was based on the collection of taxes and made equally available to all citizens (or maybe all residents).

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By A Conservative Teacher, August 12, 2011 at 9:11 pm Link to this comment
(Unregistered commenter)

Do some of you commenting honestly think that the
national government has the power to force me, a
citizen living far away from DC, to buy big red
rubber balls or whatever it wants me to do?

You honestly believe that the government should have
the power and authority to tell someone that if they
don’t buy a particular product or service that the
government wants, be it volcano insurance or a solar
powered automobile, than the government has the power
to fine that person?

This is a free county and was founded as such; go
visit Russia or China or Cuba or North Korea to see
where supporting tyranny will lead you.

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Lafayette's avatar

By Lafayette, August 12, 2011 at 6:40 pm Link to this comment

Gmon: I just don’t see how I can be forced to buy an insurance plan from a private company.  It strikes me as unconstitutional, but I am certainly no expert of constitutional law.

Health Care insurance is cross-border state to state and therefore under the jurisdiction of federal law. It will amuse us greatly how the Supremes will tie themselves in a knot to get around that obvious fact and decide that Obamacare is under state and not a Federal jurisdiction. And try they will ...

Your right, you should be forced to buy an insurance plan from a National Health System. Why?

Because the key to maintaining skyrocketing costs is to mandate practitioner costs. Which is what the AMA certainly does not want to see happen to its physician members. Nor do private hospitals and clinics who charge whatever rate they think the public will accept.

What do the insurers care? They take a cut of the action whatever the price.

We can blog about Health Care until the cows come home. But, after all the ink is wasted, we are reinventing the wheel. How’s that?

If you look real hard at all the Health Care systems in the world, the ones that work best and cost least are in Europe. They are, at the very least, half the Total HC Cost per capital of the US - for the same quality of service and far more universal coverage.


This cost is a huge burden to the US, in two ways. First of all, it affects our National Debt since Health Care is a significant part of the Federal budget (20%). Secondly, private health insurance is recuperated by costing it into the products/services that companies produce and market - so it makes them even less competitive than need be.


And finally, those saying the private HC insurance is “competitive” are spewing BS. Take a look here at the make-up of Health Care insurance in America today.

It is controlled by a handful of nationwide insurance companies. And between them and us, on the other end, are private hospitals and private practitioners who are raking in the money.

There is No Competition in Health Care anywhere in the world due to the nature of Health Care services. (Too many customers chasing too few HC-services suppliers.) Which is why the smart countries treat it as a national Public Service.

I guess we aint so smart, are we ... ?

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OzarkMichael's avatar

By OzarkMichael, August 12, 2011 at 5:14 pm Link to this comment

As one of the vicious hateful evil people I am starting to wonder if maybe the bill really is un-Constitutional.

I mean you can always find a local judge somewhere to rule the way you want on almost anything, but we are getting into the higher courts now. This is pretty serious.

And the other problem is that Obamacare already has hidden price tags, to the tune of 1 trillion confirmed(info available upon request, but you should already know and if you dont know it is likely that you dont WANT to know) since after the bill was passed. Therefor we are talking about a huge loss of revenue if the healthy people can opt out of the system without penalty. Insurance companies(and in this case Obamacare) needs those healthy people to pay the bills for the few who get really sick. No insurance company can sell low cost insurance if its only for the people who are sick that will buy it. Obamacare can off course do this but it will(already has) erased whatever spending cuts that Congress might manage to negotiate, but now this cut off of mandated individual payments to the system is going to be some serious red ink. If it was a normal business, they would file for bankruptcy

So if the individual mandate is outlawed by the courts, the Obamacare is going to sink the system with massive debt.

Maybe that is why the Lefties are celebrating?

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By bigjohn756, August 12, 2011 at 5:00 pm Link to this comment
(Unregistered commenter)

People who refuse to purchase health insurance will be
punished when they need health care and can’t get it
because they have no insurance. Oh, no, never
mind…I’ll get to pay their bills for them, so,
they’ll be alright after all. Not to worry, I have
plenty of extra money.

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By Dr Bones, August 12, 2011 at 4:44 pm Link to this comment
(Unregistered commenter)

We need single payer or whatever every other industrialized nation is doing that works. 

But I can see there would be no end to K Street’s Congress mandating all of us into slavery by requiring to buy more worthless good and non-services from corporate criminals.

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By berniem, August 12, 2011 at 4:16 pm Link to this comment

Another step in the direction of single payer, universal health care!

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By Gmonst, August 12, 2011 at 4:09 pm Link to this comment

I don’t know if striking down the mandate to purchase health insurance can fairly be characterized as a triumph of evil over good. 

I am certainly no Fox News fan, and I am very much for universal healthcare via a medicare for all kind of system.  However, there is something about the mandate to purchase insurance that has never sat right with me.  When Hillary Clinton suggested it during the 2008 primary race, I didn’t like the idea much and my opinion hasn’t improved a lot.  I understand that it integral to the successful implementation of the healthcare plan, but I think that shows the overall weakness of the plan.  I just don’t see how I can be forced to buy an insurance plan from a private company.  It strikes me as unconstitutional, but I am certainly no expert of constitutional law.

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By diamond, August 12, 2011 at 3:00 pm Link to this comment

Can’t you just hear all the champagne corks popping over at Fucked News? And I hope all the morons who come on here and whine about Obamacare are happy that they’ve once again helped evil to triumph over good.

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