The essential vote on the 11th Circuit Court of Appeals panel that ruled that the individual-coverage mandate in President Obama’s healthcare reform is unconstitutional did not come from a reactionary Republican appointed by Ronald Reagan or George W. Bush.
Rather, it came from a respected jurist whose two appointments to the federal bench—first as a judge for the Northern District of Georgia in 1994 and then to the 11th Circuit in 1997—were made by then-President Bill Clinton. No, Judge Frank Mays Hull is not a raging lefty, but nor is she a right-wing judicial activist. A former law clerk for Judge Elbert Parr Tuttle, who as the chief justice of the US Court of Appeals for the Fifth Circuit from 1960 to 1967 led the court in issuing a series of epic decisions on behalf of civil rights, Judge Hull has a reputation as a moderate defender of the rule of law who has earned reasonable marks for her pragmatic and decidely mainstream interpretations of the Constitution.
So why did Hull join with another member of the appeals court panel (Chief Judge Joel Dubina, an appointee of George H.W. Bush) to form the 2-1 majority that rejected the individual mandate while affirming the rest of the law? Perhaps it was because one can favor sweeping healthcare reforms—including an expansion of Medicare—while still believing that it is wrong to require Americans to buy insurance from for-profit insurance companies.
Hull telegraphed her thinking with repeated questions during June oral arguments in Atlanta regarding the case. Noting that “the panel spent a significant amount of time discussing whether the mandate is ‘severable’ from the rest of the law,” Politico pointed out that: “Hull in particular asked the federal government three times where the line should be.”
Ultimately, Hull and Dubina came to the conclusion that the individual mandate could, and should, be removed from an otherwise constitutional plan.
Why? Because, as the judges wrote in their majority decision: “This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives.”
Those of us who favor fundamental healthcare reform have always been uncomfortable with the individual mandate. So was candidate Barack Obama, who distinguished himself from Hillary Clinton (a mandate backer) by saying in a February 2008, interview: “Both of us want to provide health care to all Americans. There’s a slight difference, and her plan is a good one. But, she mandates that everybody buy health care. She’d have the government force every individual to buy insurance and I don’t have such a mandate because I don’t think the problem is that people don’t want health insurance, it’s that they can’t afford it. So, I focus more on lowering costs. This is a modest difference. But, it’s one that she’s tried to elevate, arguing that because I don’t force people to buy health care that I’m not insuring everybody. Well, if things were that easy, I could mandate everybody to buy a house, and that would solve the problem of homelessness. It doesn’t.”