Eleventh Circuit Panel Strikes Down Obamacare’s Individual Mandate

by Mike on August 12, 2011

in Economy,Judicial Watch,Law

The majority of a three-judge panel of the Eleventh Circuit Court of Appeals proved that it at least knows how to read has struck down the individual mandate portion of Obamacare as unconstitutional., though not the entire law despite the absence of severability clause.

Although the entire law should have been invalidated, the Court was right to strike down the individual mandate because Article One, Section Eight of the Congress the right to regulate interstate commerce, not an individual’s decision not to engage in an economic activity.  In his dissent, Judge Stanley Marcus  argued that the law should have been upheld because “Congress’ commerce power has grown exponentially over the past two centuries and is now generally accepted as having afforded Congress the authority to create rules regulating large areas of our national economy.”

Putting aside the fact that the de facto growth of institutional power is not a constitutional basis to regulate non-activity, Judge Marcus seems unable to grasp the fundamental distinction between Obamacare’s individual mandate and the line of Supreme Court cases that unconstitutionally expanded Congress’ Commerce Power.  Even the most outrageous Commerce Clause cases that found small-scale intrastate activity to fall under the umbrella of interstate commerce because of a minuscule “effect”on interstate commerce all involved individuals engaged in some form of activity.  As wrong as the decision was, at least the farmer in Wickard v. Filburn was actually growing wheat.  Forget the distinction between economic and non-economic activity; Obamacare regulates people doing nothing at all.  The act is unconstitutional.

Sadly, we are now at a point in our country’s history when the rule of law is not dependent on the Constitution. As The P.J. Tatler correctly predicts:

Anyway, everyone knows this thing is headed to the Supreme Court, where Anthony Kennedy’s mood will determine whether the interstate commerce clause can be used to force people to buy a product that they cannot buy across state lines.

A constitution that changes according to the whims of the times is a constitution that protects nothing at all.  Kudos to the Eleventh Circuit for following the law.

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