Joining Florida eventually were 25 other states, two private citizens and the National Federation of Independent Business. The defendants are several US cabinet agencies and their cabinet secretaries. Legally the case is captioned: State of Florida vs. The US Department of Health and Human Services.
While around the country other suits are pending involving healthcare reform, the Florida suit has been widely viewed as the most significant challenging the constitutionality of health care reform (often referred to as Obamacare, as a principal policy of the President) because of the general nature of the challenge and the broad national representation of the plaintiffs (more than half the states). A suit in a federal district court is the first step in a process sure to wind up in the US Supreme Court.
Central Issue is the "Individual Mandate" & Commerce Clause
The essence of the issue involved is the provision known as the “individual mandate” which requires private citizens to obtain government approved health insurance or face a penalty. The question is whether Congress, under the Commerce Clause of the Constitution, has the power to pass such a law.
US District Court Judge Vinson Issues Opinion
On January 31, 2011, US District Court Judge Roger Vinson issued his opinion in the Florida case, granting summary judgment to the plaintiffs and in doing so, ruled the entire law to be unconstitutional. Summary judgment results in a case when there are no facts in dispute, and the only matter for the judge is to decide questions of law.
Judge Vinson’s opinion consisted of three parts: congressional authority under the Commerce Clause to pass an “individual mandate,” authority under the Necessary and Proper Clause to pass an “individual mandate,” and if the “individual mandate” were unconstitutional could the rest of the law remain in place.
Commerce Clause Analysis
Judge Vinson traced the history of the Commerce Clause from the founding of the US to the present day. The power of Congress under the clause has been the subject of Supreme Court rulings dating back to Gibbons v. Ogden in 1824. Over that time, judicial understanding has generally allowed congressional authority to grow, with some recent limitations. Originally the clause was read to give Congress power over trade between the states, and in the mid-20th century it was expanded to allow congressional regulation of private activity that had a “substantial effect” on interstate commerce.
In reviewing this history, Judge Vinson found no Supreme Court authority which allowed Congress to regulate private citizen “inactivity” and require that a citizen affirmatively participate in commerce. He found that Congress could no more require a citizen to purchase health care than it could require a citizen to consume broccoli or purchase a GM car. Congress simply does not have the power to require a citizen to participate in any market, health care or otherwise.
As the “individual mandate” provided that a citizen would suffer a government penalty for not buying health care, such a penalty was beyond congressional authority to impose and hence unconstitutional.
Necessary and Proper Clause Analysis
In addition to the Commerce Clause, the US government had argued that the Necessary and Proper Clause of the Constitution furthered allowed Congress to impose the “individual mandate”. This clause is Art. I, Sec. 8, Cl. 18 and states the Congress shall have the power:
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
Judge Vinson reviewed the case law on this clause of the Constitution, and its history. His conclusion was that this clause grants Congress no authority independent of the other powers listed in the Constitution. It only allows Congress to pass laws that are necessary to carry out other powers. Since the “individual mandate” was outside any other authority granted to Congress, the Necessary and Proper clause could not be employed to make it constitutional.
Could Unconstitutional “Individual Mandate” Be Severed From Obamacare?
The final portion of Judge Vinson’s 78 page opinion addressed an important issue. If the “individual mandate” was unconstitutional, could that portion of the law be “severed” from the act, allowing the rest of the act to go into effect? This is a legal concept called severability. The legislature often includes in a law a statement to the effect that if a portion of a law is found unconstitutional, the rest of the law will still be enforced.
“The Affordable Care Act” had gone through several drafts prior to its final passage by Congress. In earlier drafts, a severability clause was included. In the law as passed, the clause had been deleted. Arguments of the US government in the lawsuit and statements of Congressional representatives during hearings and debate on the law said that the “individual mandate” was critical to the operation of the law. Based upon the lack of a severability clause, congressional history and arguments of the government, Vinson found that without the unconstitutional “individual mandate,” there was no section of the law that could be constitutional.
A Constitution in Name Only
Vinson backed up his decision with what I consider to be a thorough analysis of the law and the Constitution. The summation is included however, not at the end of the opinion, but rather in the middle, indicating that allowing the Congress to require people to affirmatively take action would mean congressional power would have no limits and there would be no real Constitution. The real summation was succinctly put:
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.”
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
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