JONATHAN COHN AUGUST 12, 2011
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On Friday, the 11th Circuit Court of Appeals issued a decision in the case against the Affordable Care Act. It's not the decision that defenders of the law wanted.
Two of the three judges found that the individual mandate -- that is, the requirement that Americans of means contribute to the costs of health care, either by obtaining insurance or paying a fee to the government -- is unconstitutional. The judges declined to invalidate the entire law, as a lower court judge in Florida had done. But they did not mince words about the mandate, saying that it "is unprecedented, lacks cognizable limits, and imperils our federalist structure."
I strongly disagree, as regular TNR readers know. The decision is more than 300 pages long, so I don't want to comment on it substantively without reading it throughly and consulting some scholars. One key issue, though, is worth addressing now. Frank Hull is one of the two judges who signed this decision. And she took her seat on the bench in 1997, after Bill Clinton appointed her. That makes her the first Democratic appointee, at any level, to rule against the individual mandate.
But does that history belie her ideological predisposition? Ian Millhiser, a policy analyst at the Center for American Progress, thinks so. Via e-mail, he writes:
Although Frank Hull’s nomination to the 11th Circuit has Bill Clinton’s name on it, she got Clinton’s nod because the GOP-controlled Senate would not confirm a progressive or even centrist judge to this seat, and Clinton decided it was better to appoint a very conservative judge than leave this judgeship vacant. Since joining the court, Hull has consistently restricted individual rights and favors prosecutors over criminal defendants. We now know that she also holds a very radical view of Congress’ enumerated powers. That is unfortunate, but it also places her well to the right of Chief Justice Roberts and Justice Kennedy.
Millhiser's argument, which he fleshes out in a new post for Think Progress, seems to be correct. According to media accounts, Clinton appointed Hull to 11th Circuit because she was acceptable to Orrin Hatch, then chairman of the Judiciary Committee, who had blocking Clinton's more liberal appointees. At the time, an article from the Atlanta Journal-Constitution noted that Hull's "judicial philosophy has been described as moderate to slightly conservative."
Also worth remembering: The dissenting vote in this case comes from Chief Justice Stanely Marcus, a Republican whom Ronald Reagan first nominated to the federal courts. He's actually the second Republican appointee to uphold the law. The first was Judge Jeffrey Sutton, whom George W. Bush put on the bench and who backed the mandate when it went before the 6th Circuit, in Ohio. I'm not sure how much import to give Marcus' history. But most observers consider Sutton, a former Scalia clerk, to be a serious conservative.
All that said, this decision further scrambles the partisan categories and evens the score at the appellate level, with one decision for and one against the mandate. It also eliminates any remaining chance the Supreme Court might pass on the case altogether.
So while I'm busy reading the decision this weekend, you might want to clear your calendars for next June, at the end of the court's term. As journalist and world-class legal expert Jeffrey Toobin says, this is shaping up as "the biggest case since Bush v. Gore."
Update: I added some material on Hull's history.
20 comments
Cohn, Why bother to read the decision? You already disagree with the decision and nothing anyone says or does will change your mind. You might need to obtain some talking points to better support your ideologue narrative -- but it won't be done in the interests of finding the truth. Wait..... I sometimes forget that TNR is refuge of moonbat bloggers trying to pass themselves off as reasonable journalists. So you are obligated to feed the moonbats with whatever plausible but incorrect counter-arguments you can come up with in 4-8 hrs.
- mr_rationale
August 12, 2011 at 4:46pm
It is incredible to me that there is no outrage at a legal system where a judge's ruling depends on their political party. It is equally incredible to me that people can give money to legislators who pick judges that will rule based on their political party. King Henry I started a tiered national court system where universal concepts of dispute resolution could be applied to diverse circumstances uniformity. Now its money and whose team you're on. I hope if the Supreme Court throws it out, they never see another pay raise, because they ask for them every year.
- Nusholtz
August 12, 2011 at 4:46pm
Rat, one of the judges didn't agree with the decision either (good idea to read post before commenting?). It's not that uncommon.
- ironyroad
August 12, 2011 at 6:14pm
irony, if the irrational thing bothered to read the posts he'd never be able to comment...
- cspencef
August 12, 2011 at 6:57pm
Mr. Rat: The Jonathan's are two of the best journalists I have come across. I find their writing to be consistently thoughtful, even-handed, insightful, and supported by reasoning and facts. If you disagree with them, I suggest that you present your arguments in an analytical manner rather than resorting to accusations and name calling.
- kluhman
August 12, 2011 at 6:57pm
I think the decision puts conservatives in a bit of a trick-bag. If the mandate doesn't hold, then the costs of all the mandates would crush the insurance industry eventually.
- NCblue
August 12, 2011 at 7:31pm
What if the social security act of 1935 required everybody to contribute to an IRA at Mellon Bank or another major bank? Here's what the two judges who joined in the majority opinion said about the mandate: "But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die."
- rayward
August 12, 2011 at 8:30pm
From the decision: "But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die." Well, that isn't what the law requires. The law does not require that everyone buy insurance; it only imposes a tax if an individual doesn't have health insurance. This is functionally no different from raising everyone's taxes by the amount of the penalty and then giving a tax credit for those who have insurance. The latter is surely constitutional, since tax deductions and credits are given to provide incentives for all sorts of behavior. I find it hard to believe that constitutionality would turn on such formalities, and no one has really answered to my satisfaction why it should. I still think that Scalia will vote to uphold the law, probably Kennedy too, so it will be at least 6-3.
- dsimon
August 12, 2011 at 8:51pm
In regard to rayward's post. They can make me send money to the government and the government can give the money to private industry (like they did in Iraq), but they can't make me deal directly with private industry? Can they make me only buy drugs from a pharmacy with a doctor's prescription? Or is it the fact that health insurance is supposed to last a lifetime.
- Nusholtz
August 12, 2011 at 9:02pm
just repeal ACA - wasting another year counting the angels on the dotted i on page whatever is what motivated the TEA party into existence, and is driving the real economy into paralysis. and we certainly need no more lawyers in Congress or the White House. writing as someone on Medicare in Massachusetts - here is a dose of reality: IT DOES NOT WORK!!
- K2K
August 12, 2011 at 9:49pm
Do the majority judges understand that if the individual mandate is unconstitutional, tax subsidies of any kind are unconstitutional? Does the court believe that the Federal government cannot choose to levy taxes on particular classes and not on others? I think the first error of supporters of the ACA was in allowing the individual mandate to be called an "individual mandate." They should have called it "opt-out with tax penalty" or something. There is no mandate. Anyone can choose not to buy insurance; he just has to know that if he joins the class of non-insurance-buyers, he will be subject to an additional tax. OTOH, part of me welcomes this. Let the Republican Federal and Supreme Court justices remove their masks and show themselves for the venal, cryptofascist dogs that they are. A war is being fought over the future of American democracy, and the clearer the battle lines are drawn the better. And who knows, maybe this will clear the decks for Medicare for All.
- AaronW
August 12, 2011 at 10:23pm
Why the 11th Circuit is wrong about the mandate http://www.washingtonmonthly.com/political-animal/2011_08/why_the_11th_circuit_is_wrong031506.php [So, what’s the problem with today’s ruling? The reasoning is all wrong. Is the mandate “wholly novel”? That’s certainly open to some debate. The notion of government-mandated purchases is hardly foreign – existing federal laws require millions of homeowners, for example, to purchase flood insurance. Nuclear power plants have to purchase liability insurance, whether they want to or not. The Civil Rights Act mandated businesses engage in commercial activity that owners found objectionable. George Washington signed a law requiring much of the country to purchase firearms and ammunition. John Adams and Thomas Jefferson even supported legislation that required private citizens to pay into a public health-care system, and included a “regulation against a form of inactivity.”]
- wkwami
August 12, 2011 at 10:30pm
wkwami: "Is the mandate “wholly novel”? That’s certainly open to some debate." It may be open to some debate, but whether it's "wholly novel" has nothing to do with whether it's constitutional. Plenty of things are novel and entirely constitutional. The "novelty" claim is simply not a relevant consideration.
- dsimon
August 12, 2011 at 11:41pm
Kluhman, You have to be kidding, right? They both have acute confirmation bias related to liberal, Big Gov, policies. Which is OK since that is what TNR is all about --- Groupthink for liberals. Both of the Johns ignore facts that disprove their points of view. they are not remotely close to even-handed analysts, merely liberal bloggers. Sometimes they pose as analysts however, which must be corrected.
- mr_rationale
August 13, 2011 at 7:37pm
“They both have acute confirmation bias related to liberal, Big Gov, policies. Which is OK since that is what TNR is all about --- Groupthink for liberals.” mr-rationale, the bigot talks about “group think forliberals” this is his little joke. It’s as if I would go on the boards of the national review or some other right wing maga and talk about group think for right wing conservatives. TNR is a liberal magazine but I haven’t noticed much group think here. Being pro health care legislation isn’t a sign of “group think.” On the other mr rationale says nothing that is original with him including his bigoted attacks on “big government Jewish Democrats.” (Right Wing Big business Republican doesn’t bother him.) Every phrase he uses has been approved by uber right wing Big Media boss Rush Limbaugh. You are a joke, mr-rationale and you are no independent thinker, though you do belong to that herd that likes to think so.
- arnon
August 14, 2011 at 10:11am
dsimon- "Novelty" certainly is not dispositive with respect to constitutionality. But it is not irrelevant. Constitutional text rarely dictates an answer regarding the scope of federal power. So one thing the Court appropriately looks at is precedent, both judicial precedent and the precedent of what government powers we have historically taken for granted. The Court has said that the federal government has the power to regulate, indeed criminalize, the growth of marijuana in one's back yard for personal use. Certainly the purchase/sale of health insurance has a greater nexus to interstate commerce than does the growth of marijuana for perosnal use. But opponents (including some of the courts) say that the "mandate," unlike the marijuana law, compels certain conduct, rather than merely prohibit certain conduct, and thefore that it is an unprecedented expansioin of federal power. An appropriate rejoinder is that there are plenty of examples of federal regulations that compel certain behavior, and that have never been challenged. And therefore, the "mandate" is an expansion of power only in the sense of the number of people it affects. In any event, I don't think novelty or lack thereof is irrelevant to the discussion. Dhurtado
- NR143296
August 14, 2011 at 11:08am
are_none of your posts insightful? Look up Groupthink. The consensus on Obamacare constitutionality no matter what the counter-point is a combination of confirmation bias and groupthink. Curious, what part of the public sector do you work in? I am a Bigot??? Chait is jewish and prefers a bigger activist Gov. Perry is christion who prefers a smaller 'get out of private sector way' Gov. These are simple facts. At TNR there is a huge undercurrent of anti-christian, all conservatives are racists, republicans are crazy thought and bigotry. TNR perhaps the most Bigoted blog out there. Look up the definition of Bigot. I do find the psychosis fascinating though.
- mr_rationale
August 14, 2011 at 4:31pm
mr_rationale "Look up Groupthink." I know what "groupthink" means and I also know where it comes from, do you? "The consensus on Obamacare constitutionality no matter what the counter-point is a combination of confirmation bias and groupthink." This is crap. It's up to a court of law to decide it's constitutionality. This means that the Supreme court will end up ruling on the issue. Groupthink has nothing to do with it. "Curious, what part of the public sector do you work in?" Another stupid rightwing shibboleth. The "public sector" I worked for was called a private college. Where do you work, mr.(i)rationale? "I am a Bigot??? Chait is jewish and prefers a bigger activist Gov. Perry is christion who prefers a smaller 'get out of private sector way' Gov. These are simple facts." The facts are not that simple except to a moron like you. Chait is Jewish and he prefers activist government, hence all Jews prefer activists governments. Perry is a Texas Christian and he prefers small government therefore all Christian prefer small government. This is classic bigotry. Look it up. Then take a course in logic. You are anything but rational, you are a pathetic knownothing racist Republican. And no not all Republicans or Christian are racists, or pathetic, but you surely are. There is no anti-Christian undercurrent at TNR, this is another one of your paranoid comments.
- arnon
August 14, 2011 at 4:59pm
I wonder how anit "big government" Republicans define "BIG government?" We are a nation of some 300 million people, should we go back t the size of government we had in the late 18th when we were a country of some 3 million people? And why is it that government kept growing larger under Republicans like Reagan and GW BUSH?
- arnon
August 14, 2011 at 8:56pm
arnon, why do you bother with mr_rationale? The man/woman's worldview, as you pointed out, is informed by Rush. No new information, nor blog conversation, can ever change that. A true dittohead indeed.
- scrubby
August 15, 2011 at 7:12am