Late in the evening on April 1, the Obama administration filed their official appeal with the 11th Circuit asking the court to overturn federal District Judge Roger Vinson’s pivotal decision declaring the entire Patient Protection and Affordable Care Act unconstitutional.
They called the decision by federal Judge Roger Vinson “indefensible” and are obviously trying to convince the appeals court that Vinson’s decision is an anomaly that flies against established legal precedent. But are they overcompensating with somewhat dramatic accusations against a respected federal judge’s decision because they realize their arguments in defense of the health care law’s constitutionality are losing steam?
Whether the administration wants to admit it or not, when 26 states, and NFIB, the nation’s largest small business advocacy group, join forces in a lawsuit against a federal law, and a federal district judge rules in their favor, the lawsuit has merit and deserves to be taken seriously.
Constitutional experts from both political parties along with several other district court judges have reached different conclusions over whether or not the individual mandate, or minimum coverage provision, requiring citizens to purchase government approved health insurance, is constitutional. And no one can definitely say how the justices on the U.S. Supreme Court will ultimately rule on this issue.
What we know for sure, is that by passing the individual mandate, and compelling citizens to purchase a private product, Congress crossed a line that has not been crossed before. For the first time, the federal government is trying to manipulate their power to regulate interstate commerce to encompass forcing citizens to purchase products that they may not want or need.
Does our constitution give Congress the authority to compel citizens to purchase government approved goods and services against their will? Is Congress’ commerce power so broad that it permits the federal government to punish its citizens with a monetary penalty if citizens decide they do not want to purchase the product Congress has deemed to be mandatory? No matter what spin the government tries to put on this case this is the critical issue that needs to be answered by the court.
NFIB joined the lawsuit along with the states because our members, small-business owners nationwide, strongly believe that the constitution does not grant Congress this type of authority over how citizens choose to manage their independent lives. They recognize this is a slippery slope and do not want the federal government in the business of determining what private products or services citizens must purchase.
Proponents of the health care law, along with the administration, have tried to alleviate these fears by arguing that the health insurance market is unique and this uniqueness will somehow prevent Congress from passing similar legislation requiring individuals to purchase other products. But small-business owners, the states, the public, Judge Vinson in Florida and federal district Judge Henry Hudson in Virginia aren’t buying this. If Congress can require citizens to purchase government approved products in the name of health care reform, then there is no legal backstop preventing Congress from regulating citizens to buy other products in the name of any other worthy cause.
A court finding that Congress doesn’t have this authority will not tie Congress’ hands in terms of legislating future health care reforms. The government is correct in arguing that Congress has the authority derived from the Commerce Clause to regulate health insurance companies.
No one but the administration’s legal team seems to think this is the issue. But regulating insurance companies and the products they sell to willing consumers is not what the individual mandate is all about. It’s about forcing unwilling citizens to purchase insurance products in order to reduce costs for insurance companies and their voluntary customers. These are distinct issues. And they cannot be melded together, from a constitutional stand point, on the grounds that entering into the health care market in one’s lifetime and needing to pay for the services received is inevitable. Many uninsured individuals can and will pay for the health-care services that they will receive, and they cannot be conscripted into the insurance market simply because others will fail to do so.
Congress has the power to regulate the insurance industry; they’ve done so for years. In passing PPACA, they chose to reach further and are now trying to regulate an individual’s personal decision not to participate in the insurance market. This is unprecedented and threatens to undermine any constitutional limits on Congress’ commerce power that exist today.
Congress knew this when they passed the bill, and President Obama knew it when he signed it into law. They also purposively passed the Act without a severability clause and have consistently argued that the individual mandate is integral to how this Act should operate. Yet the administration tries to caveat this argument by claiming that if (and only if) the court finds the mandate to be unconstitutional, then the rest of the provisions of the Act could stand on their own. Rings a bit duplicitous doesn’t it?
Despite what the government may want the 11th Circuit to believe, rejecting the government’s arguments and determining that the entire law is unconstitutional is anything but indefensible. NFIB, and the 26 states that have joined this lawsuit, look forward to proving this as our case proceeds.
Karen Harned is executive director of Small Business Legal Center at the National Federation of Independent Business which, along with 26 states, has filed suit challenging the constitutionality of the health care law.
Karen R. Harned, esq. is executive director of the NFIB's Small Business Legal Center.