11th Circuit Declares Individual Mandate Unconstitutional

Here we go again. A divided panel of the 11th Circuit has concluded that the health care reform's individual mandate is unconstitutional. This creates a circuit split with the Sixth Circuit, which also ruled via a split panel.

The Eleventh's Circuit's servers are clogged up now, but I'm looking forward to reading this opinion. I just hope it's better than the Sixth Circuit's dissent, which I thought demonstrated poor legal reasoning. (You know you're in trouble when most of your citations are to SCOTUS dissents.) I'm just sick of reading substantive due process arguments masquerading as commerce power challenges.

Two additional notes. 1. The existence of a circuit split will make it more likely that SCOTUS will decide this case before the 2012 election. 2. I'm glad that, as with the other circuit decision, there's no partisan divide among the panel votes; I think the perception that judges were voting based on whether they were appointed by Republicans or Democrats was very bad for the judiciary.

UPDATE: Oops, I spoke too soon about hoping to avoid disguised due process arguments.

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. . . . In answering whether the federal government may exercise this asserted power to issue a mandate for Americans to purchase health insurance from privatecompanies, we next examine a number of issues: (1) the unprecedented nature of the individual mandate; (2) whether Congress’s exercise of its commerce authorityaffords sufficient and meaningful limiting principles; and (3) the far-reachingimplications for our federalist structure.