11CA Rules Mandate Unconstitutional

For the first time, a federal appellate court has ruled that the individual mandate provision of the Affordable Care Act is unconstitutional. The 2-1 ruling [pdf] is notable for three reasons. First, this new conflict between circuit courts makes it likely that the Supreme Court will hear the case in the upcoming term. Second, Judge Frank Hull has become the first Democratic appointee to find the mandate unconstitutional. And third, the 11th circuit rejected Judge Roger Vinsion's transparently illogical conclusion that the mandate could not be severed from the rest of the ACA. If upheld in full, the newest decision would leave the rest of the ACA standing.

On the merits, the key arguments of the majority are familiar -- most notably, that the mandate is unprecedented in scope and that if the mandate was upheld, federal power would be theoretically unlimited. For reasons I've explained at some length, I find both of these arguments unpersuasive in the extreme. What's more important, alas, is whether Anthony Kennedy finds them credible, and he might. Today's decision makes it likely that we'll find out what Kennedy thinks sooner rather than later.

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