Yesterday we reported that the federal government decided not to seek en banc review of the Eleventh Circuit’s decision striking down the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  Today, the battle has moved to the U.S. Supreme Court in full gear.

About two hours ago, the government filed its cert petition asking the U.S. Supreme Court to reverse the Eleventh Circuit’s ruling that the individual mandate exceeds Congress’s Commerce Clause power.  Here is the government’s 34 page petition, which is docketed as 11-398.

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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).  In today’s cert petition, the government argues that the Eleventh Circuit’s decision “is fundamentally flawed and denies Congress the broad deference it is due in enacting laws to address the Nation’s most pressing economic problems and set tax policy.”  The government specifically highlights how the Eleventh Circuit’s decision directly conflicts with the Sixth Circuit’s June 29, 2011 decision 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).

Also interesting is the fact that the government has asked the Supreme Court to consider whether lawsuits challenging the individual mandate are barred by the Anti-Injunction Act (which the government previously has argued does not act as a bar).  As we previously reported, the Fourth Circuit earlier this month concluded that the individual mandate is a tax, and thus the plaintiffs could not challenge the mandate until it goes into effect in 2014: “Because this suit constitutes a pre-enforcement action seeking to restrain the assessment of a tax, the Anti-Injunction Act strips us of jurisdiction.”  See Opinion, Liberty University, Inc. v. Geithner (Fourth Circuit, Case No. 10-2347) (PDF).

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In addition to the government’s cert petition, the plaintiffs in this 26-state constitutional challenge to the health care statute also filed a cert petition earlier today.  Likewise, the National Federation of Independent Business, a party to the same lawsuit, has filed a cert petition.  You may be asking: Why are the plaintiffs filing cert petitions if their constitutional argument prevailed at the Eleventh Circuit?  One of the reasons is because of severability.  While the Eleventh Circuit majority ruled that the individual mandate is unconstitutional, it did not follow the lead of Florida District Judge Roger Vinson in setting aside the entire statute.  As we previously reported, Judge Vinson not only ruled back on January 31 that the individual mandate is unconstitutional, he also ruled that the entire law must be invalidated.  See State of Florida, et al.  v. United States Department of Health and Human Services, et al., Case No. 3:10-cv-91 (N.D. Fla.).  As Judge Vinson stated in his opinion, “Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void.  This has been a difficult decision to reach, and I am aware that it will have indeterminable implications.”

From a broader perspective, the continued uncertainty over the constitutionality of the health care statute (as evidenced by the conflicting Circuit Court opinions from the last several months) is bad for business and bad for the nation as a whole.  Thus, it is perhaps not surprising that we are presented with the unique situation where the federal government, the states, and business groups all want the Supreme Court to step in immediately and resolve the contentious legal fight.  Given today’s filings, the odds of U.S. Supreme Court review have just gone up dramatically.  To be continued for sure…