I’m glad Trevor Burrus took the laboring oar in pointing out highlights from an Eleventh Circuit opinion that, as he put it, “is not only exhaustive, it is convincing.” I’ve been swamped with editing the Cato Supreme Court Review and preparing for our Constitution Day conference, so have had little time to put words on paper (or even on screen) after my initial statement.
I did put together one op‐ed, however, that ran today in Politico. Here’s an excerpt:
By [striking down the individual mandate], the court — including, for the first time, a judge appointed by a Democratic president — reaffirmed that the Constitution places principled limits on federal power. It rejected the government’s argument for a situational limit on Congress’s regulatory authority based on the idea that health care is “unique,” and somehow different both from other products that everyone consumes (like food, clothing and shelter) and other types of insurance against unpredictable events (like death, disability and natural disasters).
The government’s position failed to sway the court because it did not suggest a constitutional interpretation of the commerce power. Indeed, factors like the inevitability and unpredictability of treatment, the requirement that hospitals treat people with emergency medical conditions and the high cost of advanced care “speak more to the complexity of the problem being regulated than the regulated decision’s relation to interstate commerce. They are not limiting principles, but limiting circumstances.”
I conclude that now that we have two thorough circuit court opinions going in opposite directions, there’s no reason to wait any further: The government should file for, and the Supreme Court should grant, a petition for certiorari (review). Any delay by the government would be base political strategery, an attempt to push the eventual Court decision — whatever it is — past the November 2012 presidential election.