Experts Weigh in on Today's 11th Circuit Hearing


By Hadley Heath

In case you couldn't travel to Atlanta today to hear oral arguments in Florida v. Dept. of Health and Human Services, here are a few legal experts who've weighed in:

Randy Barnett, Professor Legal Theory, Georgetown Law:

The challengers brought their "A Team" of advocates in Mike Carvin and Paul Clement, and they did not disappoint.  The government was challenged by the court to provide some limiting principle on the power of Congress to compel persons to engage in economic activity, but it was unclear whether the judges were satisfied with its answer.  Just saying "health care is unique" does not provide any judicially administrable line between this mandate and the next.

Ilya Shapiro, Constitutional Law Scholar, Cato Institute:

As the lawyer representing 26 states against the federal government said, "The whole reason we do this is to protect liberty." With those words, former solicitor general Paul Clement reached the essence of the Obamacare lawsuits. With apologies to Joe Biden, this is a big deal is not because we're dealing with a huge reorganization of the health care industry but because our most fundamental first principle is at stake: we limit government power so people can live their lives the way they want. Read More...

Ilya Somin, Associate Professor of Law, GMU Law School:

Today's oral argument highlighted the key point that there is no logical way to uphold the individual mandate without giving Congress a blank check to impose virtually any other mandate it might want. The Constitution simply does not allow Congress that kind of unconstrained power. 

Stephen Presser Professor of Legal History, Northwestern University School of Law:

There is a reason why 26 states have joined in the case argued before the 11th Circuit this morning, because if the federal government can do what it tried to do in the Patient Protection and Affordable Care Act, there are simply no limits to the power of the central government.  This cannot be what the framers intended, because the Constitution would never have been ratified if the right to self-government by the people and the states could be so easily obliterated.  The Tenth Amendment was designed not only to preserve liberty, but also to ensure that the governments closest to the people (the state and local governments) were the governments that had the responsibility for promoting the general welfare of the American people and safeguarding their rights and liberties.  In today's argument the lawyers from the Justice Department were not able to explain how their position allowed for any limits on the federal government, just as no proponent of the Constitutionality of the act has ever been able to explain what limits would remain if the act passes Constitutional muster.  This issue will ultimately be settled by the United States Supreme Court, but the friends of liberty and self-government will hope that the
11th Circuit will join Judge Vinson in declaring that the 10th Amendment is still a part of the Constitution, and the Patient Protection and Affordable Care Act is unconstitutional.

David Kopel, Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law:

The "non-infinity principle" states that when Congress attempts to use the    interstate    commerce    to   exercise   power   over  what is non-commercial  and non-interstate, the exercise of power must have be based on a rationale that does not allow Congress to legislate on everything.

The  non-infinity  principle  was  at the heart of the Supreme Court's 1995  Lopez  decision,  and  the  2000  Morrison decision. As the oral argument  before  the  11th  today  made clear, the individual mandate plainly fails the non-infinity test.

Contrary to the Obama administration's claims, health insurance is not a  "unique"  product. It is true that almost everyone will spend money on health care at some point, but the same is true for transportation, food, housing, and entertainment.

In  creating  the federal government, the American people chose not to give  Congress  a general "police power," but instead limited Congress to  specific  enumerated  powers.  Instead  of usurping power that was never  granted,  the  advocates  of Obamacare should have attempted to make   an   honest   case  to  the  American  people  in  favor  of  a constitutional  amendment to grant Congress the power to constrict the health care and health insurance choices of the American people.

Stay tuned for more!


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