Tuesday, September 13, 2011
Judge Christopher C. Conner (M.D. Penn.) ruled today in Goudy-Bachman v. Sebelius that the so-called individual health insurance mandate in the Affordable Care Act exceeds Congress's authority under the Commerce Clause and the Necessary and Proper Clause. Judge Conner also ruled that the mandate is severable from the rest of the ACA, except the guarantee issue and preexisting conditions provisions (which require insurers to take all comers) because the mandate partially funds those provisions. Thus according to the ruling, all three provisions--the individual mandate, the guarantee issue, and the preexisting conditions--are unconstitutional.
Judge Conner wrote that he didn't find particularly helpful the familiar distinction (and favorite among opponents) between regulating "action" and regulating "inaction." He said that the Court had previously adopted--and later abandoned--similarly unhelpful distinctions. He didn't want to go down that road here.
But yet his own analysis then turned on exactly this kind of distinction--between an "anticipatory" regulation, and a regulation of ongoing behavior. Judge Conner wrote that the principal problem with the individual mandate is that it required insurance before the purchaser enters the market for insurance or the market for health care. He wrote that this kind of "anticipatory" requirement is unprecedented and exceeds congressional authority, but he didn't well explain why his distinction is any more helpful or determinate than the action/inaction distinction. (In fact, it seems nearly exactly the same as the action/inaction distinction: all "action" is non-anticipatory, by definition, and vice versa. Similarly, "anticipatory" is necessarily "inaction." It's not at all clear why Judge Connor's new language helps untie this knot.)
Judge Conner also expressed concern that the government's theory of authority knows no bounds and would lead to a generalized federal police power.
The ruling comes just a week after the Fourth Circuit ruled in Virginia v. Sebelius that Virginia lacked standing to sue. (Virginia's theory of standing--that the individual mandate interfered with its sovereign right to protect its own citizens from such a mandate--was very different than the plaintiffs' theory of standing here.)