(CN) – A provision of the new health care law that requires all Americans to have insurance is unconstitutional, the 11th Circuit ruled Friday, partly affirming the decision of a Florida federal judge. The majority held that the so-called individual mandate exceeds Congress’ powers under the commerce clause, but could be struck out to preserve the rest of the law.
President Barack Obama signed the Patient Protection and Affordable Care Act into law in March 2010, but the individual mandate is not set to take effect until 2014.
U.S. District Judge Roger Vinson in Pensacola, Fla., had ruled on Jan. 31 that the act could not survive if the unconstitutional provision was severed.
That judge, who was appointed to the bench by President Ronald Reagan, later suspended the declaratory judgment order, which would have stopped implementation of the law, pending this appeal.
On Friday, the Atlanta-based federal appeals court issued a sweeping, 304-page filing on the case, which includes a 13-page appendix.
Chief Judge Joel Dubina and Judge Frank Hull sided with the law’s challengers: 26 Republican attorney generals and governors, two private citizens and the National Federation of Independent Business. Dubina was appointed by President George H.W. Bush, and Hull was nominated by President Bill Clinton.
“The individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional,” according to the 207-page majority opinion. “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”
“The individual mandate, however, can be severed from the remainder of the act’s myriad reforms,” the majority wrote, noting that the other provisions of health care reform are constitutional.
The judges said that the individual mandate constitutes a regulatory penalty, not a revenue-raising tax, and cannot be sustained as an exercise of Congress’s power under the taxing and spending clause.
Judge Stanley Marcus, appointed by President Ronald Reagan, said the individual mandate should not be struck out. He noted that the Congress passed the controversial reform because the segment of the U.S. population who lack health insurance still consume medical services, at a huge cost to American taxpayers. Meanwhile, health insurance is unavailable to many Americans with pre-existing conditions and lengthy medical histories, a group that needs insurance most.
“In the process of striking down the mandate, the majority has ignored many years of commerce clause doctrine developed by the Supreme Court,” Marcus wrote in a separate, 53-page opinion.
“I can find nothing in logic or law that so circumscribes Congress’ commerce power and yields so anomalous a result,” he added.
Though Marcus disagreed on the “critical point” of the mandate’s constitutionality, he agreed that the provision could be struck out to preserve the rest of the act.
Most lawsuits over the law have been dismissed for lack of standing. Vinson is one of two federal judges to have found the law unconstitutional, but three others upheld the law.
In June, the 6th Circuit upheld the law as constitutional.
Friday’s decision from the 11th Circuit came the same day that the 9th Circuit affirmed dismissal of a challenge to the law brought by former California legislator Steve Baldwin and the Pacific Justice Institute.
Experts do not expect resolution of the issue until the Supreme Court rules on one of these cases.