We are closing in on the one-year anniversary of the Sixth Circuit’s June 29, 2011 decision rejecting a constitutional challenge to the mandate requiring individuals to purchase health insurance under the Patient Protection and Affordable Care Act, Public Law 111-148. The Sixth Circuit was the first Circuit Court in the country to rule on the health care statute’s constitutionality when it issued 64 pages of opinion just 28 days after oral argument and upheld the individual mandate as a constitutional exercise of Congress’s commerce power. See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388). The divided Sixth Circuit panel included Sixth Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and United States District Judge James L. Graham (Southern District of Ohio), sitting by designation. All three judges issued separate opinions, and only Circuit Judges Martin and Sutton agreed that the individual mandate was a constitutional exercise of Congress’s Commerce Clause power. While Judge Sutton, in his concurring opinion, felt constrained to uphold the constitutionality of the individual mandate under the Supreme Court’s modern Commerce Clause jurisprudence, he challenged the Supreme Court to take up the issue, which it did last November.
Next week, the U.S. Supreme Court is expected to rule on the constitutionality of the individual mandate in a landmark ruling that not only will have immediate political ramifications, but also could have long-term structural consequences for congressional authority and the reach of the federal government’s power under the Commerce Clause. Interestingly, a recent insider survey of nearly 60 legal experts found that most of them expect the Supreme Court to strike down the individual mandate. Their views were shaped in large part by the oral arguments before the Court back in March (although query whether oral arguments are a reliable predictor of a court’s decision).
So how do you think the Supreme Court will rule? And will it be a 5-4 decision, as many are predicting?
No matter how the Supreme Court rules, it is certain to draw upon the differing views in the three opinions from the Sixth Circuit’s Thomas More case. We’ll be covering the Supreme Court’s decision and offer an in-depth analysis.