A Federal judge in Florida has ruled that the individual mandate in the 2010 health care reform legislation goes beyond the powers of the Federal government, and ruled it unconstitutional. That evens the score, with two federal judges appointed by Democrats ruling the provision is constitutional, and two appointed by Republicans ruling it is not.
The latest ruling goes a step further, concluding that the individual mandate is so integral to the rest of the legislation that it cannot be separated, and so the entire health care reform act is unconsitutional. The previous ruling against the HRC severed the individual mandate and left the rest of the legislation intact.
Pundits and bloggers on the left are railing about the Democrats' error in not making the provisions of HRC severable. But I'm not so sure it was a mistake. It may have been a necessary part of the negotiation.
Even though I think the individual mandate is constitutional, I have to give the Florida judge props for seeing the HRC as indivisible. Remember that this was a grand bargain -- the insurance companies got 32,000,000 new customers with federal subsidies in exchange for giving up limitations on pre-existing conditions and no longer terminating policies for ill customers. If you take back the 32,000,000 customers (the practical effect of ruling against the mandate), the insurance companies will want to raise premiums to cover the additional costs to them.
The previoius three cases have all been appealed, and the Justice Department is expected to appeal the Florida decision. One interesting note is that one decisoin in favor of HRC and one against are both appealed to the Fourth Circuit, generally considered the most conservative circuit. However, recent appointments by President Obama may slightly shift that balance.
Assuming the expected divide in the Circuits, the Supreme Court will have to decide whether the individual mandate is constitutional and whether it is severable. SCOTUS watchers expect Chief Justice Roberts and Associate Justices Scalia, Thomas and Alito to come down against HRC, and Associate Justices Breyer, Ginsburg, Sotomayor and Kagan to come down in favor. If that read is accurate, Associate Justice Kennedy, a Reagan appointee viewed as a centrist, is the deciding vote.