Saturday, August 13, 2011
We now have a Clinton appointee in the 11th Circuit who has sided with the opponents of the individual mandate. Ostensibly, this balances the Bush appointee in the 6th Circuit who sided with the proponents of the mandate. But Judge Jeffrey Sutton's opinion in the 6th Circuit is much more persuasive than Judge Frank Mays Hull's joint opinion with Judge Joel Dubina in the 11th Circuit.
Judges Dubina and Hull unreasonably discounted a few critical considerations. First, they recognized that the individual mandate may be justified as a means for Congress "to enforce its regulation of the health care industry" (page 164). And of course the individual mandate was adopted to make it possible for Congress to prohibit higher premiums for people with "preexisting conditions." If insurers soon must charge all comers the same rate, then individuals cannot be allowed to wait until they are sick to buy their health care coverage anymore than people can wait until their houses are ablaze to buy their homeowners insurance. Oddly, Dubina and Hill wrote that the implementation of Congress' ban on premium discrimination is not "in any way dependent on the individual mandate" (page 164).
Moreover, if the question is whether the individual mandate is necessary for implementing the ban on preexisting conditions clauses, then Dubina and Hull made the case very well when they observed that the federal flood insurance program has failed for lack of any purchase requirement by homeowners in flood plains (pages 117-119). And even under Dubina and Hull's understanding of the Commerce Clause power, Congress could mandate the purchase of flood insurance by making it a condition of purchasing a home in a flood plain.
Dubina and Hull also acknowledged that the key question for courts is whether the individual mandate preserves “'a distinction between what is truly national and what is truly local'" (page 104). Yet they took the surprising position that regulation of the health care industry is a matter of local concern even though the U.S. Supreme Court held 67 years ago that the commerce clause power permits Congress to regulate insurance companies. To be sure, as Dubina and Hull observed, Congress has chosen to leave much of insurance regulation to the states, but that reflects a decision by Congress not to exercise its full commerce clause power rather than a constitutional limitation on the power of Congress to regulate.
These and other weaknesses in the Dubina-Hull opinion reflect the same mistake other critics have made. The proper way to understand the individual mandate is to ask whether Congress can regulate the rate-setting practices of health insurance companies and whether the individual mandate is an appropriate component of such regulation. Dubina, Hull and other critics see the individual mandate much more as if it were a free-standing provision that must be justified without reference to its role in carrying out the full Patient Protection and Affordable Care Act.