THE BLOG
11/30/2011 12:05 am ET | Updated Jan 29, 2012

Common Sense On Obamacare -- From Miami

I welcome the Huffington Post to my hometown, Miami. I've always felt that Miami was this great little secret. If you plan it right, you can live in paradise and still enjoy rich intellectual pursuits at the highest level. If you look around just a little, you will find amazing people that are providing vision and thoughtful leadership in all walks of life.

Arts and culture and thought are exploding all around Miami. The Adrienne Arsht Center has become one of the world's great performing arts centers. Tomorrow, Art Basel begins. Down in Coral Gables, Donna Shalala is quietly putting together a world class university. Not far from there, Mitchell Kaplan started an independent book store named Books & Books, which now has locations around Miami and has outlasted many big box competitors. At the same time, Mitchell has provided an incubator for great Miami-based writers and has been a driving force behind the Miami Book Fair, which hosts some of the world's best writers in Miami each November.

We're even intellectual leaders in the world of sports! Travel downtown to the American Airlines Arena, and you will find the world's greatest capologist, the Miami Heat's Andy Elisburg, who has helped Pat Riley time and again navigate the NBA's salary cap, designed by New York's most clever lawyers. Andy's brilliance is an asset coveted around the league.

And, most people would be surprised to know that just a couple of blocks to the west of the arena, at our federal courthouse, a transplanted Miamian recently wrote an opinion that could and should provide the intellectual template for a common sense Supreme Court affirmation of Affordable Health Care Act.

The author of the opinion is Judge Stanley Marcus. Judge Marcus has been a Miamian since 1982, and is hardly a liberal firebrand. He was a law clerk for an Eisenhower appointee before he worked for the Organized Crime Strike Force of the Department of Justice in Detroit. In 1982, President Reagan appointed him to be the U.S. Attorney for the Southern District of Florida. In 1985, Reagan appointed him to the federal bench, where he flourished. Twelve years later, he breezed to bipartisan confirmation when President Clinton elevated him to the Eleventh Circuit.

A panel of the Eleventh Circuit recently took up the consititutionality of the "individual mandate" of the Affordable Health Care Act. In a 2-1 vote, the panel ruled that the mandate was unconstitutional, because Congress lacked the power under the Constitution's Commerce Clause to regulate commerce in this way. This is the case the Supreme Court has agreed to review this term. Judge Marcus wrote the powerful dissenting opinion that, in my view, overwhelmingly demonstrates the constitutionality of the mandate and the Act. His opinion should resonate with at least some of the Supreme Court's five conservative justices.

People might be surprised to know that the defense of the Act comes from a Reagan appointee. But as Judge Marcus demonstrates, liberal and conservative jurists have found that legislation like this is clearly within Congress's commerce power. Moreover, as a matter of public policy, the mandate used to make sense not only to Mitt Romney and Newt Gingrich, but to experts at the Heritage Foundation as well. And, as Judge Marcus reminds us, upholding the constitutionality of an act of Congress is an act of judicial restraint, the kind of restraint conservatives say they admire.

The beauty of Judge Marcus's opinion is that it is steeped in common sense, and exposes the majority opinion as untethered from commercial reality. He begins with a history of the Commerce Clause, going back to Chief Justice Marshall and Justice Holmes as authority for the idea that the Commerce Clause grants Congress broad authority to create rules regulating large areas of our national economy, and that courts review the exercise of the commerce power through a pragmatic lens.

Judge Marcus then speaks to his most important future audience, the present Supreme Court. He notes that the Supreme Court has issued "Powerful admonitions that acts of Congress are to be examined with a heavy presumption of constitutionality, that the task at hand be approached with caution, retraint and great humility..." In other words, it is an act of judicial restraint to recognize the proper exercise of Congressional power, and an act of judicial activism to overturn an act of Congress. Judge Marcus then quotes Justice Kennedy himself regarding the long and difficult "history of the judicial struggle to interpret the Commerce Clause during the transition from the economic system the Founders knew to the single, national market still emergent in our own era."

After recognizing the history of judicial restraint in the application of the Commerce Clause, Judge Marcus then outlines the dual practical problem Congress set out to solve. The individual mandate was designed to addressed the twin problem of (1) "huge cost shifting" caused when people can't or won't pay for health care services and (2) the inability of so many people to get health insurance because they are blacklisted with preexisting conditions. With regard to the "cost shifting" problem -- the problem that exists when that uninsured guy on the motorcyle who thinks "Helmet Laws Suck" falls off his hog and is presented at your local emergency room -- Judge Marcus offers up some fascinating statistics. First, there are a lot of uninsured people who can afford health insurance, but would rather just take their chances. In fact, there are nearly 10 million uninsured Americans with annual income between $50,000 and $75,000, and another 10 million with incomes of over $75,000. Next, the cost of this problem to our national economy is immense -- $43 billion in 2008 alone. To pay for this, health care providers pass on the cost to private insurers around the country, who pass it on to families around the country. This free riding increases family premiums by an average of over $1,000 per year!

Judge Marcus makes it clear that this is a problem that obviously impacts interstate commerce. He then notes that the Supreme Court has previously held that the Commerce Clause empowers Congress to regulate the insurance industry; to regulate the health insurance industry; to regulate the provision of health care services; to regulate the commodities used in the health care services market; to regulate the prices to be paid for health care services; and, perhaps most importantly, to establish rules cutting accross the linked markets of health insurance and health care services. How can anyone seriously argue that Congress can't deal with the problem of free riders?

The opponents of the mandate argue that this is different. They argue -- and I'm not making this part up -- that it would be OK for Congress to force people to buy insurance at the moment they choose to enter the health care "stream of commerce," but not a moment before. In other words, when the guy who thinks Helmet Laws Suck has that terrible accident and is brought to the hospital, he or someone on his behalf could then be required to buy health insurance, but not before! According to the opponents, before that guy hops on his cycle, sitting healthy in his living room, he has not yet chosen to enter the interstate "steam of commerce" for health care services, and maybe he never will. Judge Marcus exposes this argument for the nonsense it is: "There is less of chance that an individual will go through his entire life without ever consuming health care services than there is that he will win the Irish Sweepstakes at the very moment he is struck by lightning."

Judge Marcus notes that the opponents of the health care law argue that it improperly regulates the "decision not to purchase health insurance" and impinges on a "right to remain uninsured." The judge quotes a commentator who more properly describes this supposed "right" as the "right to force a society to pay for your medical care by taking a free ride on the system." You don't need to be Oliver Wendell Holmes to know there is no such "right."

But perhaps Judge Marcus is most pursuasive when he quotes Stuart Butler, who in 1989 delivered "Heritage Foundation Lecture 218: Assuring Affordable Health Care for All Americans":

If a young man wrecks his Porsche and has not had the foresight to obtain insurance, we may commiserate but society feels no obligation to repair his car. But health care is different. If a man is struck down by a heart attack in the street, Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services -- even if that means more prudent citizens end up paying the tab.

From this, Butler recommended that government impose a mandate "to obtain adequate health insurance." Judge Marcus notes that the Heritage Foundation now filed an amicus brief against the mandate and makes clear that the excerpt "does not reflect the policy of the Heritage Foundation or even the current beliefs of the speaker." To this, the judge says that he doesn't doubt the sincerity of this position, but uses the statement for its own persuasive value. Indeed, it's easy to understand why the Heritage Foundation, Mitt Romney and Newt Gingrich all used to believe that the individual mandate is a good idea. All of us who pay the tab for free riding should agree.

At the end of the day, Judge Marcus has crafted a persuasive opinion that should appeal to the Court's liberals and conservatives alike. It reminded me of what my Contracts professor told us on the first day of law school: "When you walk through that door into my classroom, bring your common sense in with you."

Judge Marcus is a big thinker in a town that has more big thinkers than you might imagine.

Welcome to Miami.