Analysis of 11th Circuit Opinion

Sorry it took me so long to slog through all 304 pages of the 11th Circuit Court of Appeals decision striking down the individual mandate that is part of the health reform law. I could give you a long and detailed summary, but that would probably be boring and most of you wouldn't bother reading it. So let me give you the whole mess in a nutshell:

The Constitution says Congress has the power to regulate commerce. That's called the Commerce Clause. And it's vague, as are most parts of the Constitution -- which is why courts every day are called on to interpret it.

There are two "book-end" cases defining Commerce Clause analysis. In Wickard v. Filburn, a farmer grew wheat on his own land. Congress passed a law saying nobody could grow more than a certain amount of wheat to control the commercial flow of wheat. But our friend Filburn bent the rules a bit and grew some extra for his own personal use. The Supreme Court said that was not okay. Even though Filburn wasn't sending the extra wheat across state lines (and, thus, into commerce), by growing some for his own consumption, he was buying less, and so his personal use affected commerce. If Filburn's own wheat was enough of an effect on commerce, where does the Commerce Clause end? What law could Congress NOT pass under the Commerce Clause?

In US v. Lopez, the Supreme Court defined that other end. Congress passed the Gun Free School Zones Act, making it a crime to possess a gun in a school zone. The Supreme Court said that prohibiting possession of a gun in a location that could not possibly cross state lines or have any effect on anything crossing state lines, so Congress did not have the power under the Commerce Clause to support this prohibition.

The question in the health reform cases is this: Is Congress's passage of a law that requires uninsureds to get insurance or face a penalty more like Wickard or Lopez? Two out of three judges said it's more like Lopez because ... well, I'm not sure. It's not commercial? But uncompensated care costs about $43 billion. It's not interstate? Okay, maybe, but doesn't it affect interstate commerce? But there was evidence that the costs are shifted to hospitals who shift them to insurers who shift them to consumers in the form of higher premiums (both the 2 judge majority and the 1 judge dissent agreed on this much). Here's really what they said: People who are uninsured and don't pay their bills are mostly people who wouldn't be affected by the mandate because they're either illegal aliens or really poor -- or, for the most part, they are healthy people who simply don't want to buy insurance and aren't worried about getting sick. And healthy people who don't use health care are not in interstate commerce and, thus, their conduct can't be regulated. Congress could pass a law saying the minute they show up at the hospital emergency room, they can be required to buy insurance, but as long as they're healthy and don't need health care, they have a right not to buy insurance.

The dissent said it's ridiculous to say that we have to wait until the damage is done -- a charge is incurred and now we all have to pay for it -- until Congress can fix the problem.

And so now we see. The Sixth Circuit voted 2-1 the other way. We're waiting for the 4th Circuit. And we'll see if the government asks for reconsideration by all of the 11th Circuit (more than just 3 judges) or if it goes right to the Supreme Court, as the plaintiffs would like.

That's probably more than you ever wanted to know about the Commerce Clause, but when you hear about this stuff on the news, just remember Filburn's wheat and you're all set. Jennifer