A few hours ago, the D.C. Circuit upheld the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148. See Opinion, Seven-Sky, et al. v. Holder, et al., Case No. 11-5047 (D.C. Cir. Nov. 8, 2011) (PDF). In doing so, the D.C. Circuit joined the Sixth Circuit in upholding the constitutionality of the individual mandate under the Commerce Clause. See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). By contrast, as we reported back in August, a divided Eleventh Circuit held that the individual mandate is unconstitutional because it “exceeds Congress’s enumerated commerce power and is unconstitutional.” See Opinion, State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021).
The D.C. Circuit’s opinion is significant because the Circuit Court reached the merits of the plaintiffs’ claims. As we have previously reported, both the Third and Fourth Circuits have held that plaintiffs challenging the individual mandate lacked standing. Similarly, Judge Brett Kavanaugh of the D.C. Circuit dissented on the ground that the court lacked jurisdiction under the Anti-Injunction Act because plaintiffs’ lawsuit constitutes a pre-enforcement action seeking to restrain the assessment of a tax.
In their majority opinion upholding the individual mandate, Senior Judge Laurence Silberman and Judge Harry Edwards noted that “[s]ince so much has already been written by our sister circuits about the issues presented by this case–which will almost surely be decided by the Supreme Court–we shall be sparing in adding to the production of paper.” Nonetheless, the majority and dissenting opinions still span 103 pages. But it is interesting that the judges believe—in line with most legal observers—that the U.S. Supreme Court is almost certain to take on the challenge to the health care statute. As we have reported, cert petitions were recently filed in both the Sixth and Eleventh Circuit cases, and opponents of the individual mandate are hopeful that the U.S. Supreme Court will hear the case in March 2012. We will report to you as soon as the Supreme Court makes its decision.