Legal Question in Constitutional Law in California

And if you drive a motorcycle you are required to wear a helmet. The theory behind these types of laws is if you don't buy health insurance or auto insurance or if you ride without a helmet you are increasing the cost of insurance for everyone else. Since the courts have upheld mandatory auto insurance and helmet laws, my prediction is that the U.S. Supreme Court will reverse today's 11th Circuit ruling and uphold the mandatory health insurance provisions of the Affordable Care Act, known to some as "Obamacare."

The difference is that you are only required to have auto insurance if you drive a car. The law does not require you to drive a car, and many people don't. The health insurance mandate is different because it would apply to virtually everyone.

As Mr. Stone says, the Supreme Court will have to decide this issue. I don't know whether it will uphold the mandate or not. But whatever the Court decides, its ruling will center on the fact that people can't opt out of the requirement.

What set Obama-care apart from all the other rules, regulations and requirements that seem similar are two factors. One the other attorneys have touched on: opt out. That is what distinguishes car insurance requirements from Obama-care. Driving has long been ruled by the courts to be a privilege, not a right. On that basis, the law says if you want to drive you voluntarily subject yourself to the requirement that you pay private companies for insurance. If you don't want to do that, you opt out by not driving. But there are many things you can't opt out of paying - such as taxes - which brings us to the second factor: it is not a government program, but rather a government rule that everyone must pay into a purely private program of insurance, with none of the Constitution's protections and rights that we have when dealing with government programs and policies. Private industry will have the power to control our health-care, with the force of government making every one of us pay for it. That is what really makes Obama-care unprecedented, and in my opinion unconstitutional. It is a no-opt-out mandate that citizens pay private companies for something they may not want or need and has no connection to any privilege other than breathing, with none of the protections afforded us under government run programs.

Might be worth noting that there are four cases, each in a different Federal appellate circuit. The one you heard about today (Atlanta) found the insurance mandate unconstitutional. An earlier decision (in Ohio, I think) found it constitutional. The other two appellate circuits have yet to rule. So, by the time the matter goes to the Supreme Court, we are likely to have four decisions, and they may go 1-3, 2-2 or 3-1. And even the circuits that agree with each other may reach their conclusions for very different reasons.