By striking down the individual mandate portion of the federal health care reform law, a panel of the 11th U.S. Circuit Court of Appeals would hobble the ability of the federal government to address a key problem: the shifting of $43 billion in costs to care for the uninsured onto others. But the ruling has a bright side. The panel upheld every part of the Affordable Care Act except the individual mandate as constitutional. Now Florida Gov. Rick Scott should see that Floridians benefit and better position the state to carry out the reforms.
The case of Florida vs. HHS, brought by Florida and 25 other states, is a political as well as legal attack on the comprehensive health care reform measure passed by Congress in 2010 as the centerpiece of President Barack Obama's domestic agenda. The law has already brought tremendous benefits to Floridians, including allowing parents to keep their children on their health insurance policies until age 26. The requirement that nearly everyone have health insurance or pay a tax penalty doesn't take effect until 2014. But the measure has become a convenient political foil for Republicans looking to exploit public misunderstanding about the law. Scott, upon the 11th Circuit's ruling, put out a statement denouncing "ObamaCare" as likely to cause the "rationing of health care," "significant tax increases" and "significant job losses," none of which is predicted by experts.
Contrary to an absolute victory, the 2-1 ruling sets aside most of what U.S. District Judge Roger Vinson of Pensacola did earlier this year when he invalidated all 975 pages of the law. While 11th Circuit Judges Joel Dubina and Frank Hull, who wrote the majority opinion, agreed with Vinson that Congress overstepped its authority by imposing an individual mandate, they found that part of the law severable from the remainder and upheld the rest of the statute.
The court rejected Florida's claim that the Affordable Care Act's expansion of Medicaid to cover all those who fall below 133 percent of the federal poverty rate is coercive. The court said that Medicaid-participating states have their own power to tax and raise revenue "and therefore can create and fund programs of their own if they do not like Congress' terms."
In striking down the individual mandate, the court said Congress exceeded its Commerce Clause powers by requiring people to buy health insurance "from the time they are born until the time they die." The court said Congress is regulating commerce by "compelling nonmarket participants to enter into commerce so that Congress may regulate them." This "economic mandate," according to the majority, is an unconstitutional expansion of federal authority without any limiting principle.
But as Judge Stanley Marcus points out in dissent, "no one can opt out of illness, disability, and death." He chides the majority for erecting an "artificial barrier" between health insurance and health care services when the two are inextricably linked. The real conduct being regulated by Congress, Marcus says, is the consumption of health care services by the uninsured and the cost-shifting that results, something well within Congress' power to regulate and remedy. And Marcus reasons that the health care and insurance market is so unique that the problem of runaway congressional power to force people to buy other products is a red herring. After all, as Marcus says, individuals often consume health care services "without regard to their ability to pay and often without ever paying for them," unlike, say, buying broccoli.
The 11th Circuit ruling stands in contrast to a recent federal appellate court ruling out of Cincinnati upholding the individual mandate and the rest of the Affordable Care Act. But both appellate courts lean toward all or nearly all of the law being found constitutional. The U.S. Supreme Court will ultimately rule, but it's time for Scott to better prepare Florida for implementing the reforms.