Commentators Lament Flawed Reasoning in 11th Circuit Health Care Decision

by Nicole Flatow

Friday’s appeals court decision striking down the individual coverage provision of the health care reform law did not hinge on any “constitutional bedrock doctrines” so much as on Congress’s alleged imprecise use of terminology, University of Southern California law professor Edward Kleinbard writes in The Huffington Post.

Had Congress framed the law as a “tax,” rather than as a “penalty” on those with certain incomes who do not buy health insurance, “the result apparently would have within its power,” even though the penalty envisioned by Congress is collected through the tax structure, Kleinbard writes.

“We now must hope that the Supreme Court will see past the formalism of this analysis and conclude that the legislation in substance is completely constitutional,” he adds.

Underlying the court's reasoning is the belief, also reflected in the recent debt-ceiling negotiations, that “government activity is largely hostile to prosperity and the pursuit of happiness, and therefore the less of it, the better,” Kleinbard writes.

Kleinbard goes on to explain why this view is wrong, in his full column here. And The Atlantic’s Andrew Cohen adds to the discussion, articulating why this view has no place in a court decision.

“As did many of its predecessors, from both the left and the right, the opinion reads in places as much like a political manifesto as it does a judicial ruling about Article I of the Constitution,” Cohen writes. “Had its language been made public just one day earlier, for example, you can bet your last pork-chop-on-a-stick that it would have been anthemized at the Republican debate in Iowa.”

He notes that the court rejected the distinction between regulating “activity” and “inactivity” that was devised by challengers to the law, and instead reasoned that if this provision could be upheld, there would be no clear way to set limits on Congress’s power.

“[T]he 11th Circuit may just have struck down the Affordable Care Act with a less viable legal theory than the one with which it was presented by U.S. District Judge Roger Vinson," he writes. "And that's saying something.”

At The New Republic, Jonathan Cohn sums up the perspectives of several other commentators, many of whom demonstrate why Friday’s decision was “a radical ruling from the bench.”

For more information about the legal challenges to the health care reform law, visit ACS’s Affordable Care Act Resources Page.