Individual Mandate Struck Down

The Eleventh Circuit has struck down the individual mandate (by a 2-1 vote).

UPDATE:  Well, I guess there is now no doubt that the Supreme Court will hear this case next year.

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5 Responses

  1. Howard Wasserman says:

    Any chance the Court will wait to see if any of these courts take the case en banc?

  2. Joe says:

    “Any chance the Court will wait to see if any of these courts take the case en banc?”

    I think there is a plausible story to tell whereby the Court finds some way of pushing the matter past the 2012 elections. I think that a variety of Justices would love for a Republican Congress and President to repeal the mandate provision without having to opine on the issue. (Kennedy for fear of it becoming another Bush v. Gore; Scalia and Alito because they’d have to backtrack on prior Commerce Clause and N&P jurisdprudence.)

  3. Brett Bellmore says:

    “Scalia and Alito because they’d have to backtrack on prior Commerce Clause and N&P jurisdprudence.”

    Not if they run with the activity/inactivity distinction we were assured was so out of the mainstream that people raising it should be sanctioned for bringing a frivolous case. It seems to be the basis on which the court ruled, and it does NOT contradict any existing Supreme court precedent.

  4. Jackson Pollack says:

    It seems to be the basis on which the court ruled

    Actually, the majority rejected that distinction as unworkable.

  5. Brett Bellmore says:

    And then proceeded to use it anyway;

    “Thus, even assuming that decisions not to buy insurance substantially affect interstate commerce, that fact alone hardly renders them a suitable subject for regulation.”

    What is the difference between a decision to do X, and a decision not to do X, if not an activity/inactivity distinction?