THe 11th Cir. may well just forward this to the Supremes.
I believe that this may get forwarded to the Supremes.
If they don't my guess is they will affirm the part that strikes down the individual mandate and reverse the part that strikes down the entire law.
To be perfectly honest here, while I have been and still am against the mandate that requires everyone to purchase health insurance ( as our President Obama who was totally against a mandate once said "If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house." ) I am not against the ENTIRE Law. There are some good things included in that law.
I am really interested to learn why, and how legally, the Judge decided that the ENTIRE law must be struck down. And I don't believe that his decision has anything to do with partisan politics.
The partisan part probably took place when our government officials originally voted on this, (for or against) without reading the entire content!
There has to be some kind of legal language that this Judge felt he could base this decision on.
Very interesting.
There was no severability included. Now this is NOT required for Congressional Statutes but is normally included in most bills.
There is legal precedent for courts to only invalidate those sections of the law that they find unconstitutional (Canon of Constitutional Avoidance) but they are not required to hold to that precedent, especially when there is no severability explicitly included.
The closest analogy I can think of is making a business presentation but neglecting to have thought through completely one abstract point that you think is pretty minor. Your boss' boss -who doesn't like you anyway- zooms in on that minor point and proceeds to use it to eviscerate your argument in front of the entire management committee. The outcome may be incorrect by your POV but then again you left yourself open for that by not dotting the "i's" and crossing the "t's".
As we discussed before I think, the constitutional question comes down to the basis for an individual mandate-Commerce/Necessary and proper- what exactly?
I don't think there is a constitutional basis for an individual mandate. I would have preferred single payer or public option. Even if those were foreclosed for political reasons there are constitutional methods to arrive at the same end- ie. tax breaks for insurance premiums, shorter enrollment schedules, etc.
The issue (and I don't necessarily think it's a left/right thing) is that this law seeks to claim Congressional Commerce Clause authority over
inactivity. That is something that is new and different than what's happened in the past. The normal challenges to assertions of such authority have been made by people who were already unambiguously engaging in commerce-or at least activity (see Wickard).
Here the logic is tautological. If you are selling or buying something then you fall under the ability of Congress to regulate. If you are
NOT selling or buying something then your lack of commerce is commerce and you
STILL fall under Congress' ability to regulate. I think it's a bridge too far. I am not worried so much about this Congress or this President as I am concerned about the mischief that future leaders could use this for.
