(Published in The Wall Street Journal, August 18, 2011)

Another court affirms the concept of ‘enumerated powers’ as central to the Constitution.

By DAVID B. RIVKIN JR. AND LEE A. CASEY

In the most comprehensive judicial opinion to date, a three-judge panel of the United States Court of Appeals for the 11th Circuit last week ruled (2-1) that Congress cannot compel Americans to buy and maintain health insurance.

Unlike the Florida district court that earlier found ObamaCare unconstitutional, the 11th Circuit did not invalidate the entire law. But it likewise reaffirmed the fundamental constitutional rule that our federal government is one of enumerated powers with judicially enforceable limits.v.

Congress enacted the Patient Protection and Affordable Care Act of 2010 in order to guarantee near-universal health-insurance coverage. According to this law, individuals who do not have a health plan through their employers, and who do not qualify for Medicare or Medicaid benefits, must buy a plan from private insurance companies. Congress relied on its constitutional power to regulate interstate commerce to impose this unprecedented mandate.

In fact, the individual insurance mandate does not regulate commerce. It imposes a freestanding obligation that must be satisfied regardless of whether one is engaged in commerce.

Government lawyers defending the health law argued that the failure to have congressionally prescribed insurance is the result of an “economic decision” (whether or not to purchase the required insurance) that Congress can regulate because such decisions affect commerce.

The court rejected this construct out of hand and cut to the chase: “Properly formulated, we perceive the question before us to be whether the federal government can issue a mandate that Americans purchase and maintain health insurance from a private company for the entirety of their lives.” The answer, ruled the court, is no.

Congress, the court said, cannot force individual Americans to buy health insurance—or any other product—simply because they exist. Judicial recognition of such a power would permit federal regulation of any aspect of life with some arguable economic impact, however remote. Accepting such a claim would fundamentally undermine the Constitution’s “federalist structure.”

Those “structural limits embedded in the Constitution,” the opinion noted, “are of equal dignity to the express prohibitions [on government action]—and may even be a more prevalent source of limitation.” This is because those structural limits, the separation of powers among the three branches of federal government horizontally, and between the federal and state governments vertically, are a primary guarantee of individual liberty. “The structure of the Constitution interposes obstacles by design, in order to prevent the arrogation of power by one branch or one sovereign.”

The court’s bottom line is this. Congress cannot use its power under the Commerce Clause to eliminate distinctions between national and local authority, reducing the states to administrative units that implement federal policies and programs. Here, the opinion explained, “[a] state’s role in safeguarding the health of its citizens is a quintessential component of its sovereign powers.” Health care, and health insurance, are areas of traditional state concern where states enjoy a broad police power.

That power might be broad enough to support a requirement that all citizens buy insurance. But it is a power that the Constitution emphatically denies to the federal government. Moreover, these critical limits on federal power are judicially enforceable.

The court’s opinion also should put to rest claims—advanced for differing reasons by those on the left and right—that the constitutional challenges to ObamaCare are (or should be) attacks on President Franklin D. Roosevelt’s New Deal and the modern regulatory state it spawned. No previous Congress has ever claimed the power to require Americans to engage in a particular form of commerce and, as the 11th Circuit decision noted, the Supreme Court has never suggested that Congress’s power to regulate commerce could be used to this effect—regardless “of the seriousness and intractability of the problem [such as lack of health insurance] Congress sought to resolve in the Act.”

Unlike federal district court Judge Roger Vinson, whose opinion was being appealed, the 11th Circuit panel did not invalidate the entire statute. Rather, it concluded that ObamaCare’s other provisions—including those requiring insurance companies to cover pre-existing conditions—are viable even in the absence of the unconstitutional individual mandate.

This is not what Congress intended. But that will now be a question for the Supreme Court, as will the constitutionality of other provisions requiring states to expand their Medicaid programs at the cost of billions.

Messrs. Rivkin and Casey served in the Justice Department in the Reagan and George H.W. Bush administrations. They represent 26 states challenging ObamaCare’s constitutionality in this case.

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Source: http://online.wsj.com/article/SB10001424053111903480904576512591390602176.html