The Eleventh Circuit on “ObamaCare”: How the Tea Party Actually Lost

See others’ take on the same.

Set aside the Court’s holding that the individual mandate represents an inappropriate expansion of the Commerce Clause — to which this is a proper rejoinder.  Instead, when reading the monolithic opinion (pdf), take note of Section III.B, which begins on page 55, and rejects the Plaintiffs’ attempt to read serious force into the Tenth Amendment. Functionally, the Court holds that there is no external, Tenth Amendment limitation on the spending power, absent “coercion”:

The Tenth Amendment places certain limitations on congressional spending; namely, that Congress cannot place restrictions so burdensome and threaten the loss of funds so great and important to the state’s integral function as a state—funds that the state has come to rely on heavily as part of its everyday service to its citizens—as to compel the state to participate in the “optional” legislation. This is the point where “‘pressure turns into compulsion.’”

The Court takes the coercion doctrine seriously — which is itself an indication of how far off-base the rest of the decision is — but that’s the extent of the discussion. The larger tea party argument, that healthcare isn’t a government function recognized by the Constitution, was either dropped on appeal, brushed aside, or both. An interesting question here is why right-wing lawyers won’t adopt, as a litigating position, a constitutional vision that their legions of followers purport to believe. Is it because the lawyers know it’s frivolous, invented, fake constitutionalism?

That said, credit to the dissent for going somewhat off the reservation — a dissenter’s sovereign right — to identify the background concern for individual economic liberty, and sharply correct it. Start at page 281, or, I’ve excerpted the best parts below the jump, with legal prose intact, so we can fully appreciate the breadth of the plaintiffs’ alarmism, and the depth of their error.

Long story short, the 11th Circuit’s decision represents a political victory for the increasingly radicalized right. But it’s a defeat for the larger tea party movement’s recidivist vision of the Constitution, in that their soldiers, assured of defeat, have abandoned the battlefield where it matters most:

Implicit in the plaintiffs’ Commerce Clause challenge, and providing the subtext to much of the majority’s opinion, is the deeply rooted fear that the federal government is infringing upon the individual’s right to be left alone — a fear that is intertwined with a visceral aversion to the government’s making us do something we do not want to do (in this case, buy a product we do not wish to purchase). The plaintiffs say that Congress cannot compel unwilling individuals to engage in a private commercial transaction or otherwise pay a penalty. The difficulty, however, is in finding firm constitutional footing for the objection. [. . . .]

Nevertheless, it is clear that individual liberty concerns lurk just beneath the surface, inflecting the plaintiffs’ argument throughout, although largely dressed up in Commerce Clause and Necessary and Proper Clause terms. For example, the state plaintiffs go so far as to say that the individual mandate is “one of the Act’s principal threats to individual liberty,” States Br. at 16, and that upholding it would “sound the death knell for our constitutional structure and individual liberties,” id. at 19. Similarly, the private plaintiffs claim that the individual mandate “exemplifies the threat to individual liberty when Congress exceeds its enumerated powers and attempts to wield a plenary police power.” NFIB Br. at 7. Sounding almost entirely in economic substantive due process, the private plaintiffs also assert that “[a]mong the most longstanding and fundamental rights of Americans is their freedom from being forced to give their property to, or contract with, other private parties.” Id. at 47. [. . . .]

the Supreme Court has long since abandoned the sweeping protection of economic rights through substantive due process. . . . Today, economic regulations are presumed constitutional, Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976), and are subject only to rational basis review, Vesta Fire Ins. Corp. v. Florida, 141 F.3d 1427, 1430 n.5 (11th Cir. 1998). [. . . .]

The plaintiffs’ more provocative argument is found in the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. The plaintiffs do not explicitly flesh out how the mandate violates the Tenth Amendment. The Supreme Court, however, has said precious little about the tail end of the Tenth Amendment that reserves power to the people. Indeed, no case, either from the Supreme Court or from any lower federal court, has ever invoked this portion of the amendment to strike down an act of Congress. Instead, the Supreme Court’s Tenth Amendment cases have grappled almost exclusively with the balance of power between the federal government and the states. [. . . .]

Setting aside the lack of any precedent on point, a Tenth Amendment challenge to the individual mandate fails for an additional, and critical, reason: when a federal law is properly within Congress’ delegated power to enact, the Tenth Amendment poses no limit on the exercise of that power. See, e.g., New York, 505 U.S. at 156 (“If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States”) . . . .

Since the individual mandate falls within Congress’ commerce power, its enactment is a proper exercise of a power “delegated to the United States by the Constitution.” U.S. Const. amend. X. The Tenth Amendment, therefore, has no independent role to play. In short, the plaintiffs’ individual liberty claims find little support in the Constitution — whether pegged to the Fifth Amendment’s Due Process Clause or to the Tenth Amendment’s reservation of power to the people.


One comment

  1. It’s interesting how they repeatedly mention “private parties” and “private transactions”. Is there an implication that the individual mandate might be OK if it was between a private and a public party – or is that reading too much into it?

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