    Here is yesterday's 78-page ruling by Judge Roger Vinson declaring the Patient Protection and Affordable Care Act unconstitutional. My initial impressions follow.
    Judge Vinson issued his decision yesterday in the case of Florida ex rel. Bondi v. U.S. Department of Health and Human Services. The judge's opinion contains four principal rulings:
The two individual plaintiffs and twenty states have standing to challenge the Act;
The portion of the Act expanding Medicaid is constitutional under Congress' power to spend for the general welfare, and does not constitute unlawful "coercion" of the state governments;
The individual mandate contained in the Act – the portion of the law requiring all individuals to purchase health insurance – is beyond Congress' power under the Commerce Clause;
Because the individual mandate is not severable from the remainder of the Act, the entire law is unconstitutional.
    I think that three of four rulings are correct. The individuals have standing because they don't wish to purchase health insurance and this law would require them to do so; that is a concrete, personal injury to their legal rights. The states have standing because they have enacted laws that are inconsistent with the federal law, giving them standing to defend against the federal law.Â
    The Medicaid portion of the law is clearly constitutional; in my opinion, the plaintiffs did not even have a "plausible" claim that it was coercive and therefore unconstitutional. The federal government has the express power to spend for the general welfare; if individual states believe that it is too much of a burden to pay 10% of the cost of medical care for the indigent, then they are free to drop out of the federal program. That is not "coercion" in the legal sense of the term.  Conditions on federal spending are unconstitutional when the federal government threatens to withhold funding unless the states engage in some other unrelated activity. So long as the condition on spending is directly related to the purpose for which the funding is allocated, the conditions are constitutional. The federal government is not forcing the states to participate in Medicaid by stripping them of funding for other programs; instead, the federal government is offering to pay for 90% of the health care costs for people who are earning close to or less than the Federal Poverty Level.
    I disagree with the district court's third ruling that the individual mandate contained in the Act is beyond Congress' power under the Commerce Clause. The district court bases a large part of its argument upon a "slippery slope" – if the federal government can make people buy health insurance, then it can make them buy tea or broccoli or GM cars. Hypotheticals like this are difficult to respond to because they are so silly.  But off the top of my head, we could distinguish such proposals because (1) they constitute an invasion of privacy; (2) they are not necessary to a comprehensive federal scheme of regulation; (3) they do not assist in extending health insurance coverage to over thirty million people; (4) they are not essential to the enactment of other laws prohibiting exclusions for preexisting conditions in health insurance policies; and (5) they serve no apparent legitimate governmental interest.
    A more serious ground for the district court's decision is whether the conduct being regulated "affects" interstate commerce. The key finding of the district court in the Florida case is that people's failure to maintain health insurance has no effect – "zero effect" – on interstate commerce. Here is what Judge Vinson found:
Second, and perhaps more significantly, under Lopez the causal link between what is being regulated and its effect on interstate commerce cannot be attenuated and require a court âto pile inference upon inference,â which is, in my view, exactly what would be required to uphold the individual mandate. For example, in contrast to individuals who grow and consume marijuana or wheat (even in extremely small amounts), the mere status of being without health insurance, in and of itself, has absolutely no impact whatsoever on interstate commerce (not âslight,â âtrivial,â or âindirect,â but no impact whatsoever)-at least not any more so than the status of being without any particular good or service. If impact on interstate commerce were to be expressed and calculated mathematically, the status of being uninsured would necessarily be represented by zero. Of course, any other figure multiplied by zero is also zero. Consequently, the impact must be zero, and of no effect on interstate commerce. The uninsured can only be said to have a substantial effect on interstate commerce in the manner as described by the defendants: (i) if they get sick or injured; (ii) if they are still uninsured at that specific point in time; (iii) if they seek medical care for that sickness or injury; (iv) if they are unable to pay for the medical care received; and (v) if they are unable or unwilling to make payment arrangements directly with the health care provider, or with assistance of family, friends, and charitable groups, and the costs are thereafter shifted to others. In my view, this is the sort of piling âinference upon inferenceâ rejected in Lopez, supra, 514 U.S. at 567, and subsequently described in Morrison as âunworkable if we are to maintain the Constitution's enumeration of powers.â [emphasis added]
    I disagree with Judge Vinson's finding on this point. I think that it is pretty foreseeable that most if not all of the 47 million American citizens who are uninsured will get sick at some point in time, that they will seek medical care, that they will have trouble paying for that medical care, and that this will result in cost-shifting to medical care providers, other policyholders, or taxpayers. That's the principal problem that this law was enacted to address.
    Furthermore, in considering whether the problems caused by lack of insurance affect interstate commerce, the courts are not supposed to entertain their own thoughts about the matter. Instead, the courts are bound to defer to Congress' findings, so long as there is a "rational basis" for those findings. In enacting this law, Congress made these specific findings about the consequence of having so many Americans without health insurance:
(A) The requirement regulates activity that is commercial and economic in nature: economic and financial decisions about how and when health care is paid for, and when health insurance is purchased.(B) Health insurance and health care services are a significant part of the national economy. National health spending is projected to increase from $2,500,000,000,000, or 17.6 percent of the economy, in 2009 to $4,700,000,000,000 in 2019. Private health insurance spending is projected to be $854,000,000,000 in 2009, and pays for medical supplies, drugs, and equipment that areshipped in interstate commerce. Since most health insurance is sold by national or regional health insurance companies, health insurance is sold in interstate commerce and claims payments flow through interstate commerce.
(C) The requirement, together with the other provisions of this Act, will add millions of new consumers to the health insurance market, increasing the supply of, and demand for, health care services. According to the Congressional Budget Office, the requirement will increase the number and share of Americans who are insured.
(D) The requirement achieves near-universal coverage by building upon and strengthening the private employerbased health insurance system, which covers 176,000,000 Americans nationwide. In Massachusetts, a similar requirement has strengthened private employer-based coverage: despite the economic downturn, the number of workers offered employer-based coverage has actually increased.
(E) Half of all personal bankruptcies are caused in part by medical expenses. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will improve financial security for families.
(F) Under the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1001 et seq.), the Public Health Service Act (42 U.S.C. 201 et seq.), and this Act, the Federal Government has a significant role in regulating health insurance which is in interstate commerce.
(G) Under sections 2704 and 2705 of the Public Health Service Act (as added by section 1201 of this Act), if there were no requirement, many individuals would wait to purchase health insurance until they needed care. By significantly increasing health insurance coverage, the requirement, together with the other provisions of this Act, will minimize this adverse selection and broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums. The requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of preexisting conditions can be sold.
(H) Administrative costs for private health insurance, which were $90,000,000,000 in 2006, are 26 to 30 percent of premiums in the current individual and small group markets. By significantly increasing health insurance coverage and the size of purchasing pools, which will increase economies of scale, the requirement, together with the other provisions of this Act, will significantly reduce administrative costs and lower health insurance premiums. The requirement is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.
    No-one seriously contests these findings. It was incumbent upon the plaintiffs to prove that these findings were incorrect, and the plaintiffs presented no evidence on that point. Congress indisputably had a "rational basis" for reaching these conclusions. The Florida district court overstepped its bounds in striking down the law.
    I will continue with my analysis of this case in tomorrow's post, including the court's ruling on severability, which I believe was correct – to a point.
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"But off the top of my head, we could distinguish such proposals because (1) they constitute an invasion of privacy; (2) they are not necessary to a comprehensive federal scheme of regulation; (3) they do not assist in extending health insurance coverage to over thirty million people; (4) they are not essential to the enactment of other laws prohibiting exclusions for preexisting conditions in health insurance policies; and (5) they serve no apparent legitimate governmental interest."
These are pretty silly, Professor. (1) How is buying broccoli any more private than buying health insurance? Would you rather have someone look through your grocery bag or your health insurance papers? (2) If throwing all black-skinned persons in concentration camps is essential to a comprehensive scheme of government regulation, does that mean it's constitutional? (3) This is simply an emotional "ends justify means" argument. Trampling on the rights of everyone for the benefit of the few doesn't seem all that constitutional. The 30 million number is doubtless bogus as well. (4) Same as three (5) The government's interests do not take precedence over the people's inalienable rights.
An interesting mandate has been bandied about in South Dakota. It could save many lives, and allow local governments to save lots of money on police costs, so I guess it's in the government's best interests.
http://www.argusleader.com/article/20110131/UPDATES/110131031/Bill-would-require-all-S-D-citizens-buy-gun
Not only is the proposed legislation in SD consistent with the Professor's analysis, it is also consistent with the Second Amendment. What possible challenges could it face?
The issue is different at the state level. Massachusetts' individual mandate for health insurance was upheld through the state's general police powers, powers that the federal government does not have, but that I assume the state of South Dakota does. An individual gun mandate at the state level very well could be constitutional.
I think Judge Vinson answers his own question about broccoli and cars in his analysis of the attenuation prong of the affectation doctrine. I would argue the healthcare market is sui generis; the concept of non-participation is illusory. Virtually all persons will need medical treatment at some point (and the law provides exemptions for those who by reason of religion never will); the public burden from those forced to seek treatment without insurance is directly connected to those persons being uninsured. Judge Vinson's "Zero times zero" math sounds compelling, but by that reasoning, would Wickard or Gonzales be commerce? The analogy to Lopez seems strained; possession of a firearm in a school zone seems far more attenuated from the feared economic consequences than the inevitability of the uninsured needing medical care.
What about those that choose to self-insure? Young healthy people often choose to opt out of the traditional model. Not only has this right been taken away, they will also have to pay artificially high rates that are not based on sound actuarial principles.
Fair point, but I am not sure how many uninsured young people realistically have the savings to withstand a catastrophic medical event. One of the amici to the healthcare cases, a group called the Young Invincibles, has written on this issue and suggested these young people are not so much making a choice to privately fund their health needs as they are taking chances while forgoing preventive and chronic care. I don't think the law is perfect, but given the astronomical costs of healthcare, I am not sure there is a realistic alternative to insurance for most. My point was mostly that choosing not to buy health insurance has a clearer economic consequence than not buying broccoli.
Broccoli may be too specific of an example. Rather than a specific requirement to buy broccoli, consider a general requirement to buy every month a minimum amount of "healthy foods", where the government establishes some panel of experts to determine which foods qualify, in the same way that under PPACA, some panel of experts will determine which insurance policies qualify for the individual mandate. Choosing not to buy healthy foods has a clear economic consequence. Since most healthy foods are grown in states other than where they're eventually consumed, it clearly has an effect on interstate commerce, and the federal government's power to regulate food is well-established. Do you think such an individual healthy-food mandate would be constitutional?
There are three distinctions that I think need to be made here. Long-term non-participation in the health care market is very high, but this is different from saying that current non-participation in the health insurance market is non-existent. Justifying the individual mandate requires the latter claim, which is not supported by the facts.
First, participation is the health CARE market is not equivalent to participation in the health INSURANCE market. Even if I will participate with 100% probability in the health care market, how I finance that participation is an independent choice. Individuals may choose to "self-insure" (either because of large wealth or low probability of illness), but they may also choose alternative creative payment methods (and this possibility for innovation must be maintained). There are millions of Americans who will not participate in the health insurance market but who will also not add one whit to the "public burden."
Second, even if I will eventually participate in the health care market, it may be months, years, or even decades before I do. Many people choose to save for that participation through traditional insurance companies, but many choose to save through other means. Note that this is different from the first point: how I save for my FUTURE health care needs and how I pay for my PRESENT health care needs are two different concerns. They are only the same if I happen to participate in traditional health insurance.
Finally, long-term non-participation in the health care market is very low, but it is not illusory. There are thousands of Americans alive today who will not participate in the health care market before they die. Most of these will be sudden deaths, whether accidents, murder, suicide or sudden illness such as heart attacks. But some of them will not be sudden, such as those who will die of a long-term illness, but have already chosen to discontinue treatment. There are relatively very few of these people, but they certainly are not illusory.
You raise a number of interesting issues, but under the affectation doctrine, I am not sure they bar the individual mandate from being covered by the Commerce Clause. Does the activity in the aggregate effect interstate commerce? Certainly there are some who successfully handle their healthcare needs outside of insurance and those who manage to live and die without ever seeking medical care. But the number of uninsured who still seek medical care and do not privately repay those expenses have an aggregate effect on interstate commerce which would permit Congress to regulate under the Commerce Clause.
Outside of the commerce clause issue, I think you're hitting on the question on whether there is a liberty interest in how you finance your healthcare, a privacy interest Congress cannot abridge. That one's a little over my pay grade, haha.
At issue, I think, is whether a non-activity can qualify as "an activity [that] in the aggregate affects interstate commerce." The counterpoint you raise is that there is no such thing as non-activity in this context. I disagree with that counterpoint; I think non-activity IS possible in this context, provided that the context is properly defined. That's what I tried to do in my comment above.
Even though there are uninsured people who still seek medical care and do not pay for it, and even though they may have an effect on interstate commerce, I don't think that extends Congress' power to regulate the inactivity of unrelated people. To put it another way, from Raich we know that the federal government has the authority to regulate the activity of growing marijuana in your home. Does this mean that the government can establish an individual mandate to require you to grow marijuana in your home? If not, why not? What's the Constitutional difference between the marijuana mandate and the insurance mandate?
1) You personally may not consider a Congressional order to purchase health insurance as an invasion of privacy, but polls clearly indicate that around 55-60% of Americans think it is.
2) Requirements to buy tea, broccoli or GM cars are not presently "necessary to a comprehensive federal scheme of regulation", but there is nothing to prevent them from becoming so at some point. Additionally, a main point in Vinson's argument is that, based on Obama's statements, the individual mandate itself is not "necessary" to comprehensive federal health insurance regulation. Both your third and fourth points are really sub-points to your second point, and are even less legitimate for obvious reasons.
5) Again, even if they presently serve no apparent legitimate governmental interest, there is nothing to prevent them from serving such a legitimate interest in the future. However, requiring the purchase of GM cars *is* a legitimate governmental interest, as long as you think the government should be in the business of rescuing the failing automakers. Requiring the purchase of broccoli and other healthy foods is a legitimate government interest, as long as you think the government should be policing our health habits. It is very easy to imagine a world where federal requirements to purchase tea, broccoli or GM cars pass every proposed test that the individual mandate passes.
Further, you are wrong to say that "No-one seriously contests these findings." If that is what you truly believe, then you have not been paying attention. The centerpiece of the legal argument against the individual mandate is that Congress' first finding (A) is wrong. The mandate does NOT regulate "activity"– rather, it regulates "inactivity". This is the central claim upheld in the two district court decisions which have struck down the individual mandate. Do you really think that neither Judge Hudson nor Judge Vinson were "serious" in their opinions? Is it all a joke, and both of them will be issuing retractions any day now?
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