Editorial do WSJ
'The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written."
—Chief Justice John Marshall, writing in Marbury v. Madison (1803).
The 11th Circuit Court of Appeals cites those prophetic words in its decision yesterday finding President Obama's individual health-care mandate unconstitutional, and they do seem more relevant than ever. The 2-1 opinion is another landmark in restoring the government of limited and enumerated powers that the Framers envisioned.
In the exhaustive and rigorous opinion finding for a group of 26 states led by Florida, Judges Frank Hall and Joel Dubina write that the seven words in the Commerce Clause—"to regulate Commerce . . . among the several States"—have "spawned a 200-year debate over the permissible scope of this enumerated power." Even amid this argument, they write, the individual mandate stands out, which starting in 2014 will require everyone to buy health insurance or else pay a penalty.
That is "breathtaking in its expansive scope," the court wrote. "The government's position amounts to an argument that the mere fact of an individual's existence substantially affects interstate commerce, and therefore Congress may regulate them at every point of their life. This theory affords no limiting principles in which to confine Congress's enumerated power."
In other words, if the government can impose this kind of "economic mandate"—if it can force individuals to enter contracts with private companies "from birth to death"—there are no longer limits on what it cannot do. "These types of purchasing decisions are legion," Judges Hall and Dubina write.
"Every day," they continue, "Americans decide what products to buy, where to invest or save, and how to pay for future contingencies such as their retirement, their children's education, and their health care. The government contends that embedded in the Commerce Clause is the power to override these ordinary decisions and redirect those funds to other purposes."
The Supreme Court's Commerce Clause jurisprudence has expanded and contracted over the years, the apogee being the New Deal precedents. Though the commerce power "has since come to dominate federal legislation," as Judges Hall and Dubina note, the Court has always maintained that it "is subject to outer limits," as the 1995 Lopez decision affirmed.
It is a measure of ObamaCare's overreach that throughout this history, the government has never claimed a power like the individual mandate. "Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle," the majority writes.
The Obama Administration has attempted to wave off such far-reaching implications by claiming that health care is somehow inherently different from other economic decisions, but the 11th Circuit dismantles those argument as "ad hoc, devoid of constitutional substance, incapable of judicial administration—and, consequently, illusory." They are "not limiting principles, but limiting circumstances" that "imperils our federalist structure."
Judge Hall (a Bill Clinton nominee) and Judge Dubina (a George H.W. Bush nominee) have delivered one of the most persuasive and tightly reasoned deconstructions of the mandate's supposed constitutional logic, though of course the fate of the mandate lies with the Supreme Court. The new split among the appellate circuits ensures that one case or another will land in Washington—perhaps as soon as next spring.