As we previously reported and analyzed, Acting Solicitor General Neal Katyal was in Cincinnati, Ohio last week before the Sixth Circuit to argue the government’s position in the appeal involving a constitutional challenge to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148. See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). Circuit Judge Sutton and District Court Judge Graham, sitting by designation, both had pressing questions for General Katyal regarding the constitutionality of the individual mandate, and both judges requested General Katyal to articulate a constitutionally significant limiting principle that would cabin the power of Congress under the Commerce Clause.
On Wednesday, General Katyal appeared before the Eleventh Circuit in Atlanta, Georgia to once again defend the constitutionality of the individual mandate. And once again, General Katyal was sharply challenged by the judges regarding the scope of the commerce power. As we reported previously, the Eleventh Circuit case involves the high profile appeal from Florida District Judge Roger Vinson’s January 31, 2011 ruling that the individual mandate under the health care statute is unconstitutional. See State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021). The lawsuit was brought by governors and attorneys general from 26 states, and it is generating the most publicity of any of the cases currently before the Circuit Courts. The states were represented at oral argument by Paul Clement, who was solicitor general under President George W. Bush.
The Eleventh Circuit panel included Chief Judge Joel Dubina, who was appointed by President George H.W. Bush, and Circuit Judges Frank M. Hull and Stanley Marcus, who both were appointed by President Bill Clinton. All three judges questioned whether upholding the individual mandate would open the door to other sweeping economic mandates by Congress.
And so ends a very busy one-month period for oral arguments in the Circuit Courts addresing challenges to the health care statute. Which Circuit will issue the first opinion? The Fourth Circuit (which heard oral arguments on May 10, 2011)? The Eleventh Circuit? Or the Sixth Circuit? Whichever Circuit it is, it likely will happen before Labor Day. And we’ll give you the full report.