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

By Big Tent Democrat, Section Law Related
Posted on Mon Jan 31, 2011 at 03:03:51 PM EST
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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

< Walking Away | When "Essential" Does Not Mean "Necessary And Proper" >

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FL Federal Judge Rules Individual Mandate Unconstitutional, Strikes Down Health Bill | 66 comments (66 topical)

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So the question is (5.00 / 1) (#1)
by jbindc on Mon Jan 31, 2011 at 03:08:14 PM EST

Why didn't Congress put a severability clause in the bill in the first place? Did they want the challenge? Or in the year that was taken up of all of our lives micro-dissecting this, did no one notice?

Reading the severability section of the opinion (none / 0) (#2)
by oculus on Mon Jan 31, 2011 at 03:17:56 PM EST

makes me conclude this particular judge would have struck down the entire law even with a severability clause.


: You got it (none / 0) (#9)
by Big Tent Democrat on Mon Jan 31, 2011 at 03:34:23 PM EST

I think precedent is pretty clear (none / 0) (#6)
by andgarden on Mon Jan 31, 2011 at 03:31:35 PM EST

that one isn't necessary.


Not Necessary - But Intentionally Removed (none / 0) (#36)
by DaveCal on Mon Jan 31, 2011 at 05:35:58 PM EST

I thought that severability section of the Opinion was pretty well written. Judicial preference is to sever. And, as someone already pointed out, severing is even done when there is no "severability" clause. A severability clause is not necessary to have the court sever. But there were three important facts here:

One, Congress had a severability clause in prior drafts of the ACT, but removed it before it passed (as the judge pointed out). That's pointedly different from simply not having one. It is pretty good evidence that Congress intended to have the ACT stand or fall as one, without severing.

Two, the Individual Mandate is indispensible to the whole scheme. The government argued/admitted that it indispensible and the linchpin to the whole Act. Maybe the government lawyers will second-guess that approach now, but they pushed that issue. That's also pretty good evidence that the Act is intended to stand or fall as one.

Three, the Court has to be able to determine, with relative ease, what can stay (as not essential to the unconstitutional provision) and what cannot. In light of Congress' removal of the severability clause, and its arguments that the individual mandate is essential to the whole scheme, why would the Judge pick and choose what stays and what goes, and how is he supposed to do that?

Are you suggesting the Judge should substitute his discretion for that of the Legislature? I cannot imagine how much some here would be complaining if he went through section by section saying "THIS can stay, THAT has to go," especially with respect to every instance with which people disagreed.

No, the correct approach is the one the judge took. Upon finding the Individual Mandate unconstitutional, and based on the Government's claim that it is indispensible from the rest, it is entirely appropriate for the judiciary to strike down the whole thing. If Congress wants some pieces even without the individual mandate, then Congress can re-enact those pieces as stand alone measures. Otherwise, you have judges trying to write the laws. No thanks.

And FWIW, I know this blog leans pretty far left, and most like - or think we need - health care reform (whether in the form of this Act or otherwise), but I think many of these comments suffer a bit from what you all WANT to be the result.


Ironic (5.00 / 1) (#38)
by Big Tent Democrat on Mon Jan 31, 2011 at 05:48:15 PM EST

"Are you suggesting the Judge should substitute his discretion for that of the Legislature? "

Hilarious for that is precisely what he has done.


Not at all (none / 0) (#45)
by DaveCal on Mon Jan 31, 2011 at 06:03:24 PM EST

He made a simple ruling that the ACT was unconstitutional. That is precisely the Judge's constitutionally provided role.

He did not substitute his judgement about the wisdom of health care reform, or the proper ways to implement it.

He said only that Congress does not have the power under the Constitution to do it THIS way.

I understand you don't like it, but please....


I know you are not this ingenuous (none / 0) (#47)
by Big Tent Democrat on Mon Jan 31, 2011 at 06:05:57 PM EST

I love this from your comment - "He said only that Congress does not have the power under the Constitution to do it THIS way."

That's all judicial activists of ANY stripe every say.

Of course, he has the additionalproblem of having contradicted the express words of the Constitution's Necessary and Proper clause to boot.

Truly one of the most brazen attempts at judicial activism ever seen.


Get Real (none / 0) (#53)
by DaveCal on Mon Jan 31, 2011 at 06:16:20 PM EST

"He contradicted the exprsss words of the Constitution's necessary and proper clause"?

He did no such thing. That clause refers to Congress. the Judge couldn't have contradicted the express words of that clause.

Are you trying to say you disagree with his ruling on that clause? That he misinterprets it? Fine. But that's your opinion (quite wrong in my view). It is NOT judicial activism.

What exactly do you think judicial activism is? Any "act" by a judge that you don't like?


He contradicted it (none / 0) (#55)
by Big Tent Democrat on Mon Jan 31, 2011 at 06:25:03 PM EST

by ruling thaat Congress could not, in fact, pass all laws Necessary and Proper for the effectuation of its legitimate purpose.

Or do you not understand the judicial role in our system?


: You're unbeliveable (none / 0) (#65)
by DaveCal on Tue Feb 01, 2011 at 01:43:34 PM EST

I understand the judicial role. It is, in part, a check and balance on congressional overreach. If congress enacts a law that is outside it's constitutional powers, the judge is obligated to strike it down.
You can disagreee with the decision all you want. Nothing wrong with variety of opinion. But please quit saying things like "you don't understand the judicial role" and "you're ignorant of the meaning of judicial activism."
It is not judicial activism to overturn an unconstitutional law.
And read the section of the opinion on the "necessary and proper" clause. You have a very odd reading of that clause.

Ted Olson (none / 0) (#59)
by MKS on Mon Jan 31, 2011 at 06:36:55 PM EST

said just that on Fox news when being interviewed by Chris Wallace when talking about the anti-gay marriage initiative being unconstitutional.

Olson, who had convinced the Supreme Court to ignore states rights in Bush v. Gore, said that "judicial activism" just means arguing against a ruling you don't like.

Conservatives are not consistent on the point.


Ahem (none / 0) (#48)
by andgarden on Mon Jan 31, 2011 at 06:08:23 PM EST

To succeed in a typical facial attack, [the plaintiffs] would have to establish "that no set of circumstances exists under which [the statute] would be valid," United States v. Salerno , 481 U. S. 739, 745 (1987) , or that the statute lacks any "plainly legitimate sweep," Washington v. Glucksberg , 521 U. S. 702 , n. 7 (1997) ( Stevens, J. , concurring in judgments) (internal quotation marks omitted).

United States v. Stevens.


Footnote 30 reveals the political (none / 0) (#58)
by MKS on Mon Jan 31, 2011 at 06:33:18 PM EST

grounding of the opinion.

To site as support for finding a law unconstitutional the comments during a primary campaing that one aspect of the law is bad policy, shows it was all about imposing this Republican judge's personal opinion.


Just like the attempt to strike down the New Deal (none / 0) (#37)
by MKS on Mon Jan 31, 2011 at 05:44:42 PM EST

Conservative judicial activism.....


Good Lord.... (2.00 / 1) (#49)
by DaveCal on Mon Jan 31, 2011 at 06:09:57 PM EST

It's NOT judicial activism at all.

The role of the judge is to determine if the ACT is constitutional. He did his job. Nothing more.

You want to appeal, appeal. You want to argue over what Congress SHOULD be allowed to do, fine.

But this judge is NOT trying to write laws with his rulings.

Or are you suggesting that any time a judge strikes down a law, that "act" is jusicial "activism"?

Sounds like the same kind of slippery logic that has the government claiming that NOT buying insurance is somehow engaging in interstate commerce.

Straight out of Orwell's 1984. Doubleplusungood.


When a judge strikes down a whole law (none / 0) (#50)
by andgarden on Mon Jan 31, 2011 at 06:12:11 PM EST

on the basis of one sections supposed infirmity, he is indeed engaging in activism. See United States v. Stevens.


Ridiculous (none / 0) (#51)
by Big Tent Democrat on Mon Jan 31, 2011 at 06:13:22 PM EST

Judicial activism, a neutral term, means precisely striking down laws enacted by a democratically elected body.

You have no freaking clue what you are talking about.


No it doesn't (none / 0) (#54)
by DaveCal on Mon Jan 31, 2011 at 06:20:58 PM EST

So any judge striking down any law is judicial activism?

Sorry. Can't disagree more.


It's not open to disagreement (none / 0) (#56)
by Big Tent Democrat on Mon Jan 31, 2011 at 06:25:48 PM EST

The term has a defined meaning. You obviously are ignorant of it.


: Pot calling the kettle black (none / 0) (#66)
by DaveCal on Tue Feb 01, 2011 at 01:46:38 PM EST

You keep saying I don't understand Judicial Activism and the Role of the Judiciary.
I think I understand them just fine.
You want to claim judicial activism because the judge struck down a law you like. Sorry. If it's unconstitutional, it's unconstitutional.
Why don't you pull out your Webster's and think about it a bit.

Just redefine the term at will? (none / 0) (#57)
by MKS on Mon Jan 31, 2011 at 06:30:38 PM EST

It was supposed to be all about a judge substituting his or her own personal opinion for that of the legislature....

By your new definition, striking down laws against gay marriage would not be judicial activism either.


If by some chance (5.00 / 1) (#4)
by TeresaInSnow2 on Mon Jan 31, 2011 at 03:29:30 PM EST

If by some chance the Supreme court sides with this judge (they won't), then it will create a larger mess, at least for those of us on individual insurance.

Insurance companies have already implemented some of the measures required by law that came into effect this year. They have already drastically CUT some really important benefits that were not specifically mandated in the bill (like prescription drug coverage and imaging coverage in my case) to "pay" for these new requirements. They have already increased premiums considerably.

What will happen if this decision stands? Premiums will stay high. Benefits cut will stay cut. Benefits implemented to comply with the law will be reversed. We'll lose in the end.

For we little people on individual insurance, the toothpaste is already out of the tube. Any court decision is a lose-lose.

Check out footnote 30. Hey, Judge, (5.00 / 1) (#19)
by oculus on Mon Jan 31, 2011 at 03:43:58 PM EST

the primaries are soooo over!

Yikes! (none / 0) (#20)
by jbindc on Mon Jan 31, 2011 at 03:53:10 PM EST

Heh. Seriously, has anyone ever read such a politi (none / 0) (#21)
by Dan the Man on Mon Jan 31, 2011 at 04:08:06 PM EST

cal federal court opinion in one's life? In talking about federal laws and the research used to justify federal laws, courts often look at the amount of evidence Congress piles up and what leading members of Congress say. They hardly ever go over what the President says, let alone talk about what he said in his primary battles. This is really a new low in court opinions.


: Citing campaign rhetoric as to why (none / 0) (#39)
by MKS on Mon Jan 31, 2011 at 05:48:50 PM EST

a provision might not be good policy is a reason why it should be struck down as unconstitutional?
Doesn't very first year law student know the difference?

Waiting for certain commenters to chime in... (none / 0) (#22)
by jbindc on Mon Jan 31, 2011 at 04:21:35 PM EST

: Heh, heh ... (5.00 / 1) (#27)
by Yman on Mon Jan 31, 2011 at 04:55:47 PM EST

Bet that's gonna make someone even "angry"er ...

First, IANAL, (none / 0) (#3)
by jeffinalabama on Mon Jan 31, 2011 at 03:18:08 PM EST

second, are you saying, BTD, that this is an implied power? I'm not trying to oversimplify, I'm trying to wrap my non-lawyer head around the decision's basis.

On a slightly different note, the decision seemed well-written and easy to understand. Don't take this comment as support for the decision. It was well-written. Good law clerks?

It's easy (5.00 / 0) (#12)
by Big Tent Democrat on Mon Jan 31, 2011 at 03:35:08 PM EST

When you ignore everything that contradicts your reasoning.


: I didn't know that the opinion (none / 0) (#33)
by jeffinalabama on Mon Jan 31, 2011 at 05:21:35 PM EST

reached was so slanted. Thanks for that. So the application of precedent is, i take it, extremely one sided. Possibly, if not probably, wrongheaded.
Would I be incorrect in thinking this?

: This seemed like quite a funny comment (none / 0) (#60)
by MKS on Mon Jan 31, 2011 at 06:41:38 PM EST

Got a good guffaw from me. Not sure you meant it as such.....
So true, thought, just ignore reality in toto and all will be well....Does sound so good.

It is an express power (none / 0) (#8)
by Big Tent Democrat on Mon Jan 31, 2011 at 03:33:56 PM EST

"The Congress shall have Power * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof."


Thanks. (none / 0) (#17)
by jeffinalabama on Mon Jan 31, 2011 at 03:38:52 PM EST

Not trying to sound ignorant on something like this, but I'd rather ask and be thought a fool than say nothing and know I'm one.


I don't think " necessary and proper" (none / 0) (#23)
by Peter G on Mon Jan 31, 2011 at 04:32:47 PM EST

counts, by itself, as an "express power." I would try to explain it this way: Congress has the express power to regulate interstate commerce. (It also has the express power to lay and collect taxes.) The insurance business operates in interstate commerce and the entire industry is interconnected through interstate commerce. To help ensure the "general welfare" of the people (see Preface - general purposes of the Constitution) the Congress has power to regulate the (thoroughly interstate) insurance industry in ways that it believes will foster the provision of health care services throughout the U.S. The "necessary and proper clause" gives it the power to use any effective means to achieve this end, unless those means are otherwise prohibited by the Constitution. It can also use tax policy and provisions to foster this end. Under this rationale and analysis the ACA clearly passes constitutional muster.


Question (none / 0) (#24)
by jbindc on Mon Jan 31, 2011 at 04:39:08 PM EST

Even though the insurance industry operates oin interstate commerce - how does it fit that insurance is regulated by each state, and, as of now, cannot cross state lines. Since the law was struck down in its entirety with this ruling - how does this affect the risk pools? And if they are not allowed, can we still use the argument that insurance is really "interstate commerce"?

(The only thing I can think of is the example whre if I travel to Kansas and get injured or sick and have to go the hospital, but my insurance is local to the DC area, somehow it will all get worked out that the insurance will eventually cover my care).


: Insurance is regulated by the states (none / 0) (#34)
by Peter G on Mon Jan 31, 2011 at 05:31:59 PM EST

because Congress has chosen, in general, not to impose national regulation on the industry. Not that it can't. (Just as Congress has chosen to enact federal laws prohibiting psychoactive drugs, in its misguided opinion that this advances the general welfare, and can do so because drug dealing is an interlocked interstate (and international) business. Congress could choose to leave the "drug" business (I don't mean pharmaceuticals) to the states, or could impose a national law and forbid the states to interfere or meddle.) In this instance, Congress has chosen to regulate insurance, as it can and could regulate the highly interstate health care industry, for that matter) and was within its powers in making that choice as a way to help ensure the general welfare. Having done so, as BTD is emphasizing, it is empowered by the "Necessary and Proper Clause" to design and implement means of carrying out its plan that need not each, individually be otherwise constitutionally authorized.

By itself (none / 0) (#25)
by Big Tent Democrat on Mon Jan 31, 2011 at 04:45:30 PM EST

Of course not. It is the EXPRESS power to enact all laws necessary and proper to effectuate its other powers.

Clearly this power is not coterminus with those specific powers.


Did I correctly identify, in your opinion, BTD (none / 0) (#28)
by Peter G on Mon Jan 31, 2011 at 05:10:54 PM EST

the "other powers" in question? That's what I was trying to do. Not disagreeing with you at all, but rather spelling out the whole constitutional analysis in relatively simple terms.


My point is (none / 0) (#31)
by Big Tent Democrat on Mon Jan 31, 2011 at 05:16:47 PM EST

that the Necessary and Proper power is express in the Constitution. As Hamilton put it:

"Every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral, or not contrary to the essential ends of political society.


For a non-lawyer like (none / 0) (#32)
by jeffinalabama on Mon Jan 31, 2011 at 05:19:39 PM EST

myself, more explanation is better. I mean, explain it in Schoolhouse Rock "I'm just a bill" terms... Jurisprudence is not clear to me, facts that seem reasonable might be nonsense, and my interpretations depend greatly on lawyers' explanations on this site.

I'll take the time to read it, ponder it, just don't give me a Jeffrey Toobin explanation.


Do my comments 23 & 34 (none / 0) (#35)
by Peter G on Mon Jan 31, 2011 at 05:33:27 PM EST

do it for you? If not, please explain what else you are looking for, Jeff.


: Peter, very helpful. I should have (none / 0) (#52)
by jeffinalabama on Mon Jan 31, 2011 at 06:15:39 PM EST

posted a 'thank you.' As I think of more questions, I'll ask. I sincerely appreciate the patience of the lawyers here who daily take the time to explain issues to me.
I'm sure I'll have more questions, but I thank you again.

Talented clerks write nice (none / 0) (#61)
by MKS on Mon Jan 31, 2011 at 06:42:20 PM EST

sounding sentences.....

Substance a problem though....


I skimmed the opinion (none / 0) (#5)
by andgarden on Mon Jan 31, 2011 at 03:30:52 PM EST

and didn't even find one reference to the taxing power.

Result-oriented judging FTW!

There was no such analysis (none / 0) (#7)
by Big Tent Democrat on Mon Jan 31, 2011 at 03:32:39 PM EST

I would imagine (none / 0) (#11)
by andgarden on Mon Jan 31, 2011 at 03:35:08 PM EST

that Courts of Appeal do not like it when judges below ignore an independent basis for Constitutionality.

This judge seems to not be earning his keep.


I dunno (none / 0) (#14)
by Big Tent Democrat on Mon Jan 31, 2011 at 03:36:25 PM EST

He has given a road map for striking down the health bill that will be acceptable to the insurance companies.

I think he earned his keep pretty well myself.

You are bit wide eyed about the courts I think.


Well, Alito (none / 0) (#16)
by andgarden on Mon Jan 31, 2011 at 03:37:51 PM EST

is going to have to change his mind about how to invalidate legislation then. Remember his dissent on the crush video case?

Gotta run. . .


Come now (none / 0) (#18)
by Big Tent Democrat on Mon Jan 31, 2011 at 03:40:37 PM EST

They do it all the time.


: As in "get over it": Bush v. Gore (none / 0) (#41)
by MKS on Mon Jan 31, 2011 at 05:53:56 PM EST

5-4 with Kennedy siding (none / 0) (#40)
by MKS on Mon Jan 31, 2011 at 05:53:14 PM EST

with whom?

Alito, Scalia and Thomas have shown themselves to be political hacks....Roberts will fall in line with the Lochner crowd too....

I don't think Kennedy will go for it, but who knows......


: That's really all (none / 0) (#62)
by jbindc on Tue Feb 01, 2011 at 10:06:46 AM EST

that has mattered since the beginning. We all knew this would end up in front of the Supremes - it's all going to come down to what Justice Kennedy thinks.

The judge dropped a footnote. He (none / 0) (#10)
by oculus on Mon Jan 31, 2011 at 03:34:29 PM EST

had earlier rejected the government's argument the penalty is a tax.


It takes lots of work (none / 0) (#13)
by andgarden on Mon Jan 31, 2011 at 03:35:57 PM EST

to revive economic substantive due process.


It really does. The judge admits he (none / 0) (#15)
by oculus on Mon Jan 31, 2011 at 03:37:50 PM EST

heavily relied on one of the amicus briefs. Doesn't say which one. I'm thinking Federalist Society--if they filed one.


Sen. Lee from Utah (none / 0) (#44)
by MKS on Mon Jan 31, 2011 at 06:01:46 PM EST

was extolling the virtues of Lochner in a recent lecture--I kid you not....

Conservatives are not trying to go back to the 1950s.....Nope, try the 1890s. Gotta love those Robber Barons....


: At least that would save them the trouble (none / 0) (#46)
by andgarden on Mon Jan 31, 2011 at 06:04:24 PM EST

of trying the bootstrap economic SDP onto a 10th Amendment claim.
The thing about the death of Lochner is that everyone is glad it's dead for totally different reasons.

Okay... A second chance (none / 0) (#26)
by jimakaPPJ on Mon Jan 31, 2011 at 04:53:44 PM EST

Now let us see Obama seizing the day and introducing a single payer system modeled after Medicare.

Problem there, Jim, (none / 0) (#29)
by jeffinalabama on Mon Jan 31, 2011 at 05:15:31 PM EST

is the current congress. If the previous one had passed it, instead of worrying about re-election, the nation would be better off but a lot of congresscritters would have lost their jobs.
Now we have a poor law, a lot of congresscritters who lost their jobs, and at least one house of congress calling for its repeal.

Sigh. It's that whole 11 dimensional chess thing, I suppose.


That you support single payer (none / 0) (#42)
by MKS on Mon Jan 31, 2011 at 05:58:07 PM EST

never ceases to amaze me....

The cognitive dissonance causes shiplash. What was it that caused you to come to such a conclusion?

Your fellow conservatives would never allow such a "socialist" idea....


maybe shiplash--I got the Palin touch (none / 0) (#43)
by MKS on Mon Jan 31, 2011 at 05:59:27 PM EST

but it does cause whiplash too.


Maybe you should start (none / 0) (#63)
by jimakaPPJ on Tue Feb 01, 2011 at 10:51:08 AM EST

understanding that there are differences between the Left and Liberals.


: There are no moderate Democrats. (none / 0) (#64)
by Harry Saxon on Tue Feb 01, 2011 at 01:28:38 PM EST

What a farce! (none / 0) (#30)
by mjames on Mon Jan 31, 2011 at 05:16:31 PM EST

As if this has anything to do with health care anyway.

IMO, whatever the health insurance corporations want, they will get. If they want the bill to stay, thus forcing us all to shell out gobs of money we do not have for insurance that will not cover us, the vote will be 9-0 in their favor. If they want the bill to die, based on the premise that they can make more money by its death, the vote will be 5-4 in their favor.

This Court stopped following the law, or the Constitution, or precedent, a long time ago.