Last Friday, the D.C. Circuit heard oral arguments in yet another lawsuit challenging the constitutionality of the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148See Seven-Sky v. Holder (D.C. Circuit, Case No. 11-5047).  This is the fourth challenge to the individual mandate that has been heard in a federal Circuit Court.

The D.C. Circuit panel includes Circuit Judges Brett Kavanaugh, Laurence Silberman, and Harry Edwards.  One of the key issues before the panel is whether the individual mandate exceeds Congress’s powers under the Constitution.  As one legal observer notes, however, the D.C. Circuit could avoid ruling on the constitutional issue altogether if it concludes that the individual mandate is a tax, which would mean that the plaintiffs could not challenge the mandate until it goes into effect in 2014.  As we reported two weeks ago, this is the exact approach that was taken by the Fourth Circuit in Liberty University, Inc. v. Geithner (Fourth Circuit, Case No. 10-2347).  Like the Third Circuit, but unlike the Sixth and Eleventh Circuits, the Fourth Circuit in Liberty University held that the challengers lacked standing to bring their suit.

Although it is sometimes hazardous to guess how a judge will rule based on statements made at oral argument, Judge Kavanaugh did appear to be interested in the Fourth Circuit’s line of reasoning.  He stated several times that it was a “close” call whether the individual mandate is a tax that would strip the court of jurisdiction under the Anti-Injunction Act.  What’s interesting, though, is that the government has not advanced this reasoning in defending in the health care statute.  Indeed, in defending the requirement, President Obama himself has insisted that the individual mandate is not a tax.

As we previously reported, the Sixth Circuit was the first Circuit Court in the country to rule on the health care statute’s constitutionality when it upheld the individual mandate under the Commerce Clause back on June 29, 2011.  See Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  In so ruling, the Sixth Circuit concluded that the plaintiffs had standing to bring their lawsuit.  In will be interesting to see whether the D.C. Circuit follows the Fourth Circuit’s approach and concludes that the challengers lack standing, or whether instead it will follow the Sixth Circuit’s lead in Thomas More and reach the merits of the constitutional challenge to the individual mandate.  Either way, though, it will probably be a few months before the D.C. Circuit issues its opinion, which could be after the U.S. Supreme Court decides to take up the challenge.  Indeed, the Thomas More case has already landed at the U.S. Supreme Court, with the plaintiffs filing their petition for writ of certiorari back in July.  The government’s response to the plaintiffs’ cert petition is due on September 28, 2011.  We will, of course, keep you updated on the latest arguments being made by the government.