More Individual Mandate Commentary Coming Soon

I recognize that I have been somewhat derelict in failing to post additional commentary on the Eleventh Circuit’s important decision striking down the individual mandate. Unfortunately, I was away at a friend’s wedding this weekend, and testifying before the US Commission on Civil Rights on Friday. Plus, it took some time to read the court’s 300 pages of opinions.

However, if all goes according to plan (which doesn’t always happen when it comes to the media), I should have an op ed out on the case tomorrow and a longer post at RegBlog, an excellent new site focusing on regulatory issues sponsored by the University of Pennsylvania’s program on regulation. I have also made some brief comments in the media here and here. The former story also contains comments by co-blogger Orin Kerr.

For what it’s worth, my overall impression is that the opinion does a great job of explaining why the mandate can’t be justified by the Commerce Clause or the Tax Clause. I especially like the court’s explanation as to why the highly deferential “rational basis” test does not apply to this case:

Rational basis review is not triggered by the mere fact of Congress’s invocation of Article I power; rather, the Supreme Court has applied rational basis review to a more specific question under the Commerce Clause: whether Congress has a “rational basis” for concluding that the regulated “activities, when taken in the aggregate, substantially affect interstate commerce.” [quoting Gonzales v. Raich]. ….[C]ourts must initially assess whether the subject matter targeted by the regulation is suitable for aggregation in the first place….[citing relevant language from United States v. Lopez and United States v. Morrison]….

The wholesale deference the government would have us apply here cannot be squared with the Supreme Court’s decisions in Morrison and Lopez. Here, “Congress’ findings are substantially weakened by the fact that they rely so heavily on a method of reasoning that [courts] have already rejected as unworkable if we are to maintain the Constitution’s enumeration of powers.” Morrison…. It is highly instructive that the Lopez and Morrison Courts rejected a similar cost-shifting theory now propounded by the government. In examining the actual relationship between gun possession and interstate commerce, the Lopez Court refused to accept what it referred to as the government’s “cost of crime” theory…. It did so despite the government’s argument that the “costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population….” Similarly, in Morrison the Supreme Court considered a stockpile of congressional findings attesting to the link between domestic violence and medical costs frequently borne by third parties.

I discussed this issue in more detail in the amicus brief (pp. 10-13) I wrote in the case on behalf of the Washington Legal Foundation and a group of constitutional law scholars (including co-bloggers Jonathan Adler and Todd Zywicki, and recent guest blogger Kurt Lash). I’m happy to see this issue get such a thorough and thoughtful treatment, since I think it hasn’t gotten the attention it deserves previously.

I think the Court’s analysis of the government’s Necessary and Proper Clause argument is not as good. Unfortunately, they largely ignored the biggest weakness in the federal government’s position, that the mandate is not “Proper” even if it is “necessary.” The court’s Necessary and Proper Clause analysis is also somewhat confusing and not well organized. Nontheless, the opinion does make some good points on the Clause that I will discuss in my RegBlog post.

Hopefully, I will also find time to do some posts here on issues that could not be included in the Regblog post and the op ed, both of which are subject to tight word limits.

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