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Judicial legislating of health care 

Forget the headlines about foes of the health insurance reform law winning a big victory in the 11th U.S. Circuit Court of Appeals. Matters are not going well for that side.

Two appellate courts have now ruled on the constitutionality of the Patient Protection and Affordable Care Act of 2010. The 6th Circuit said it was entirely constitutional, and the 11th Circuit said only one part of it — the part that may enjoy the widest support — was unconstitutional but that everything else about the law was not only constitutional but, it implied, a sound reasoned response to a great problem.

Still, the two most rightward judges on the 11th Circuit — Chief Judge Joel Dubina and Judge Frank Hull — gave the foes of the law what they needed, a victory of some sort, even a pyrrhic one. Dubina was a certain foe. His daughter, one of the most reactionary members of Congress, has been a fierce critic of the health law. Rep. Martha Roby of Alabama was one of the handful who voted two weeks ago to let the country go into default rather than let the government continue to operate. Roby had declared the health law unconstitutional, so the judge could hardly rebuke his daughter so publicly. The other judge, Frank Hull (Frank is a woman, by the way) was appointed by Bill Clinton when a Senate minority blocked his moderate nominee and forced him to name someone Southern Republicans would let pass.

But neither the daughter nor any of the other Republicans who were counting on a sweeping decision can be happy about Dubina's and Hull's long, baffling and contradictory opinion. They said the so-called "individual mandate" for uninsured people to buy insurance or pay a small tax exceeded Congress's powers under the commerce clause, but that did not prevent every other part of the massive reform act from being implemented. The opponents of the law did not really care much about the individual mandate, but it was the one vehicle they might use to get the whole law thrown out.

Worse for the opponents than the narrowness of the decision was Dubina's flimsy reasoning. It took the third judge — an old Ronald Reagan acolyte — fewer than half the pages in his dissent to demolish it so thoroughly that the Supreme Court will have to rummage on its own to find ways to strike down the law.

That is not so remote. Though Antonin Scalia and Anthony Kennedy have authored opinions that are solid premises for upholding the act under the commerce clause, Scalia, John Roberts, Samuel Alito and Clarence Thomas can be counted on to outlaw any Democratic initiative. To strike down the law, they will have to persuade Kennedy to engage in this stark bit of judicial legislating.

The mandate is critical to the part of the law that seeks to insure most of the 50 million Americans who are not insured because they don't want insurance, can't afford it or the companies won't insure them owing to their propensity to get sick. When they get medical attention, a big part of the costs — roughly $50 billion a year — is shifted to the 200 million people who are insured or else to the taxpayers. It raises the average premium nearly $1,000 a year. The mandate is supposed to end that shift.

The majority judges found the purpose laudable but said the provision of the Constitution that lets Congress legislate in areas affecting interstate commerce does not anticipate Congress requiring Americans to buy insurance from a private company "from the day they are born to the day they die." Although the line is repeated in some form many times in the opinion, it is an untruthful description of the act, but that is a small matter.

Here is the crazy irony: In the judges' opinion, Congress could require people to buy insurance from the government, like Medicare, Medicaid or the public option that conservatives excluded from the law, but not from a private business. And it could require people to buy insurance from a company on the night they go to an emergency room or a doctor's office but not when they are healthy and not needing medical care.

"I can find nothing in logic or law that so circumscribes Congress' commerce power and yields so anomalous a result," Stanley Marcus, the dissenting judge, wrote.

Then the judges reach absurdity. They describe the mandate as sweeping and dictatorial and then criticize Congress for making it toothless. The tax that people would pay if they did not buy insurance is small — $98 in 2014 — and insurance companies say it is so small that the mandate is practically meaningless. It can't be both ruthless and toothless, can it?

As for the tax, the judges said it was a "penalty" and not a tax, otherwise the mandate would be perfectly legal under Congress's taxing power. It was described as a tax in both the House and Senate bills but it was changed to "penalty" in the final act to blunt Republican charges that the act was a tax increase. The judges happily concurred: It is not a tax increase.

That is the kind of jurisprudence that the Republicans hope will end Obamacare.

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