http://blogs.ajc.com/jamie-dupree-washington-insider/2011/08/12/individual-mandate-unconstitutional/
"The individual mandate was enacted as a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress's power under the Taxing and Spending Clause. Further, the individual mandate exceeds Congress's enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded asserts of congressional authorty; the ability to compel Americans to purchase an expensive health insurance product they have not elected to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers. “Uniqueness” is not a constitutional principle in any antecedent Supreme Court decision."
However, the court disagreed with Vinson's full overturn, finding that the individual mandate IS severable from the rest of the law.
"The individual mandate, however, can be severed from the remainder of the Act's myriad reforms. The presumption of severability is rooted in notions of judicial restraint and respect for the separation of powers in our constitutional system. The Act's other provisions remain legally operative after the mandate's excision, and the high burden needed under Supreme Court precedent to rebut the presumption of severability has not been met."
So we have a mix of good news and bad. The individual mandate was upheld by the appeals court... which means that SCOTUS review may well happen during the upcoming term in 2012. With different appeals courts offering differing opinions, SCOTUS is more likely to accept the case to reconcile the issue.
I must be honest, though. I found Vinson's ruling tossing out the whole law compelling. In finding that the individual mandate wasn't severable from the rest of the law, he essentially followed this logic:
1) Earlier drafts of the law had severability statements, which were removed for the version that passed, which indicates the intent of Congress NOT to make the law severable.
2) The government argued in court that the individual mandate was absolutely critical to the law as a whole, and also argued that the correct functioning of the law depended upon the presence of the individual mandate. In effect, the government argued before Judge Vinson that the statute wasn't severable.
Since Congress seemed to intentionally remove the severable statement, and since the government made such a point of how important to the law the individual mandate is, I agree with Vinson's ruling that if the mandate went, then so did the entire law. That, also, is a point that SCOTUS will have to review.
UPDATE: Here is a link to the full decision issued by the 11th Circuit. It's hard to get to right now, as the server is being slammed by people anxious to read their decision. Be patient, and keep trying.
http://www.ca11.uscourts.gov/opinions/ops/201111021.pdf
0 comments:
Post a Comment