You’ve seen the headlines: The U.S. Court of Appeals for the Eleventh Circuit has upheld a lower-court ruling that Obamacare’s individual mandate — which requires all U.S. residents to purchase health insurance — is unconstitutional. The case in question, Florida v. Health and Human Services, is the most important of all the Obamacare constitutional challenges thus far, because the plaintiffs include the governors and attorneys general from 26 states.

In January, when lower-court judge Roger Vinson overturned the entirety of Obamacare in the same case, I wrote that Vinson’s ruling “could go down as an important landmark in the history of American liberty.” The new ruling is even more significant. The 207-page majority opinion of the Eleventh Circuit, penned by appointees of Bill Clinton and George H. W. Bush, is the most rigorous and complete repudiation of the mandate ever written. It stands in stark contrast to the blitheness of the 26-page lead opinion from the Sixth Circuit decision in June upholding the mandate. The Eleventh Circuit judges persuasively make the case that “the government’s position amounts to an argument that the mere fact of an individual’s existence [means that] Congress may regulate them at every point of their life.”

The Eleventh’s impressive opinion makes certain that the Supreme Court will take up the Obamacare challenges. But, most importantly, Judges Joel Dubina and Frank Hull have marshaled facts and arguments in their ruling that will be impossible for the High Court’s swing voters to ignore.

The evidence that the individual mandate was the foundation of Obamacare is irrefutable. Indeed, the law’s advocates said so from the outset. Obamacare’s subsidized exchanges were designed to mitigate the mandate’s imposition of heavy insurance costs on lower-income Americans. The law’s insurance regulations will drive up the costs, and thereby decrease the incentives, for healthier individuals to buy insurance; they are thus viable only if accompanied by a mandate.

“In sum,” they conclude, “the individual mandate is breathtaking in its expansive scope. It regulates those who have not entered the health care market at all. It regulates those who have entered the health care market, but have not entered the insurance market (and have no intention of doing so). It is overinclusive in when it regulates: it conflates those who presently consume health care with those who will not consume health care for many years into the future. 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 an ideal world, it wouldn’t be necessary for judges to become health-care wonks in order to overturn constitutional insults. But judges are human. Dubina and Hull’s work identifying the mandate’s flaws, from a policystandpoint, will help moderates on the Supreme Court repudiate the provision with a clear conscience. It’s hard not to be confident today that, come June 2012, justice will be done.

Continue reading →