Legal Commentary

Unsurprisingly to those who read its earlier opinion, the federal district court in Florida has held that portions of the Affordable Care Act are unconstitutional.  Also unsurprisingly to those who may recall my blogging last year on this subject, I think the court's all wet.   

To begin with, the court asserts again (at p. 39) the fallacy that the additional tax on those who do not purchase health insurance is "unprecedented."  As I explain in a new draft (page 8, at the top of Part III), that just isn't remotely true; there are literally hundreds of other statutes that do exactly what the ACA does, which is to impose a higher tax on someone who elects not to do what Congress wants.  In fact, there is already more than one statute that imposes higher taxes on folks who don't buy insurance.  While the Court claims this point isn't determinative, it is the first thing the court says in its analysis, and certainly flavors the discussion.

Things get slippery, and start to smell like over-cooked broccoli, after the jump. 

As for the rest of the court's argument, basically, the whole thing is just a slippery-slope: if Congress can do this, what can't it do, etc.  (p.43-56).  The Court says the link between requiring an insurance purchase and other provisions of the act is just as attenuated as the link between buying broccoli and health care, and says it is "piling inference on inference."   It waives aside (50-51)  the government's argument that must-carry provisions collapse into death spirals with no real explanation, except to say that five things have to happen before that occurs.   (But, um, those five things happen millions of times every year...) And it repeats its bizarre claim that the necessary & proper clause cannot allow Congress to enact provisions that would extend beyond what is enumerated (p.62), even though that of course makes the entire clause redundant. 

To keep this short, the one point I'll make is that the ACA and its accompanying incentives to buy insurance overcome a collective action problem among states (see pp. 3-4).  Thus,  the ACA is easily distinguished from the court's parade of broccoli horribles; even if one thought that the federal government should deal only with uniquely national problems, the ACA easily meets that standard.