The Obama administration was faced with a deadline to ask for an en banc review by the 11th Circuit Court of Appeals of a decision that declared the health care reform legislation’s individual mandate unconstitutional. Under applicable court rules, such a request had to be filed by Monday, September 26. A decision to seek such a review would have caused further delay, and very likely would have delayed the timing of a decision on the legislation by the Supreme Court until after the 2012 national elections.
Perhaps eager to get the constitutional questions over the health care reform legislation resolved (or perhaps just eager to prove that at least one branch of the federal government can accomplish something), the Justice Department has let the deadline for further appeal in the 11th Circuit case pass without filing that appeal. Many observers feel that with the en banc request behind us, and with the split in the circuits on this very important issues, it seems very likely that the Supreme Court will accept these cases on appeal and will render a decision on the legislation by next summer—right in the heart of the election cycle.
In a ruling announced this past August, a divided three-judge panel of the 11th Circuit Court of Appeals ruled that the individual mandate feature of the health care reform legislation, which effectively requires all covered people to buy health care coverage, was unconstitutional. Unlike the District Court judge who had considered this case, the panel did not invalidate the entire statute in its ruling (this factor might have contributed to a decision not to appeal). The 11th Circuit case deals with a challenge to the statute brought by 26 states that centered on the individual mandate. To date, it remains the only decision by a federal court of appeals to rule against the constitutionality of the health care reform legislation.
In June, a three judge panel from the 6th Circuit Court of Appeals upheld the constitutionality of the individual mandate. In addition, a panel from the 4th Circuit Court of Appeals rejected two companion lawsuits on technical grounds. The first case was rejected based on the premise that the penalty for violating the individual mandate was in effect a tax and, as such, could not be challenged until it went into effect (the individual mandate does not go into effect until in 2014) It is worth noting that some constitutional scholars believe that treatment of the penalty for violating the individual mandate as a tax (even if President Obama and other supporters refused to label it as such during passage of the legislation) might affect the ultimate decision by the Supreme Court, which generally has been supportive of the broad power of the federal government to impose taxes. The second case deals with a separate challenge to the individual mandate brought by the State of Virginia (apparently Virginia didn’t want to play with the other 26 states!). That case was rejected for lack of standing and thus might not be an ideal case on which to build an appeal to the Supreme Court. The Circuit Court of Appeals for the District of Columbia recently heard an appeal concerning the constitutionality of the statute, but has not yet rendered a decision.
Given the split in the circuits, it certainly appears that the Supreme Court will get the last word here. In order to hear the case before the next election, the Court would have to accept a case on appeal by no later than January, 2012. It looks like we are on track to make that deadline. Clearly, the Court’s decision would have significant impact–both on legal terms and on political terms.
Those people who may have been concerned that our presidential candidates would not have enough issues to talk about next year (and I really would like to know who those people are and get them immediate help) may rest assured!