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Update – Constitutionality of the Patient Protection and Affordable Care Act

My law firm colleagues, Bruce D. Platt and Sheryl Rosen in Akerman’s Tallahassee office have prepared the following update on the constitutionality of the Patient Protection and Affordable Care Act —

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Multiple court challenges have resulted from passage of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (“PPACA”). 

On June 29, 2011, the United States Court of Appeals for the Sixth Circuit upheld the individual mandate in PPACA as constitutional. The Court in Thomas More Law Center v. Obama, 10-2388 (6th Cir.), concluded that imposition of the individual mandate is within Congress’ power under the Commerce Clause to regulate activities that substantially affect interstate commerce. The Sixth Circuit’s decision affirmed the district court’s holding in Thomas More Law Center v. Obama, 720 F. Supp. 2d 882 (E.D. Mich. Oct. 7, 2010).  Although Thomas More upholds PPACA, several other appeals are still pending in various circuits, with others still at the district court level. The cases currently on appeal over substantive issues are set forth below.  Cases on appeal regarding plaintiffs’ standing to challenge PPACA are excluded because they do not reach substantive holdings:

Virginia v. Sebelius, 11-1057, 11-1058 (4th Cir.) and Liberty University, Inc. v. Geithner, 10-2347 (4th Cir.) – The lower court in Virginia v. Sebelius, 728 F.Supp.2d 768 (E.D.Virginia Dec. 13, 2010), concluded the individual mandate violated the Commerce Clause and severed the mandate from PPACA. Conversely, the lower court in Liberty University, Inc. v. Geithner, 753 F.Supp. 2d 611 (W.D. Virginia Nov. 30, 2010), concluded that the Commerce Clause provides sufficient authority for PPACA’s insurance mandate. The Virginia and Liberty appeals have been consolidated. Oral argument was held on May 10, 2011. No decision has been released.

Florida v. U.S. Dept. of Health and Human Services, 11-11021 and 11-11067 (11th Cir.) – The lower court in Florida v. U.S. Dept. of Health and Human Services, __ F.Supp. 2d __, 2011 WL 285683 (N.D. Fla. Jan. 31, 2011), struck down the entire PPACA, concluding that the decision to refrain from purchasing health insurance is not economic activity, so the individual mandate unconstitutionally regulates inactivity. Oral argument took place on June 8, 2011. No decision has been released.

Seven-Sky v. Holder, 11-5047 (D.C. Cir.) – This case appeals the lower court’s decision in Mead v. Holder, 766 F.Supp. 2d 16 (D.D.C. Feb. 22, 2011), which upheld PPACA. The appeal is scheduled for oral argument on Sept. 23, 2011.

U.S. Citizens Association v. Sebelius, 11-3327 (6th Cir.) – This case appeals the lower court’s decision in U.S. Citizens Association v. Sebelius, 10-1065 (N.D. Ohio July 1, 2011). In that case, the district court became bound by the Sixth Circuit’s holding in Thomas More and entered summary judgment for defendants. The appeal is still at the briefing stage. No oral argument has been scheduled.

A Look Ahead

 Various commentators believe the Supreme Court will be the ultimate arbiter of whether PPAGA is constitutional (Alexander Bolton, Lawmakers Press Supreme Court for Verdict on Health Care LawThe Hill, Feb. 2, 2011; Editorial, 3 to 2 for Health Care Reform, N.Y. Times, Feb. 25, 2011).  Even Judge Vinson of the Northern District of Florida stated in his March 3, 2011 order, “Almost everyone agrees that the Constitutionality of the Act is an issue that will ultimately have to be decided by the Supreme Court of the United States. It is very important to everyone in this country that this case moves forward as soon as practically possible.” Fla.  v. U.S. Dept. of Health and Human Servs., No. 3:10-cv-00188-HEH, 2011 WL 285683 (N.D. Fla. Mar. 3, 2011) (order clarifying summary judgment order dated Jan. 31, 2011). 

However, it doesn’t appear likely that any of the District Court rulings will be appealed directly to the Supreme Court.  The Supreme Court most frequently grants direct appeals when so requested by the federal government (in a posting of Kevin Russell to SCOTUSblog).  However, thus far, the only writ of certiorari submitted for the five cases above is a writ by Virginia in Virginia v. Sebelius, and the federal government has not joined the request for cert.

If or when the Supreme Court considers the issue, some scholars believe the court’s four liberal justices – Justices Ginsberg, Breyer, Sotomayor, and Kagan – will vote to uphold the law, but there’s no clear consensus on how the five more conservative justices will rule, especially Justices Kennedy, Alito, and Roberts (Robert Barnes, Supreme Court Watchers: Roberts, Alito No Sure Bets Against Health Care Mandate, Washington Post, Feb. 13, 2011; Ben Adler, Will the Supreme Court Rule on Health Care Reform?, Newsweek, Dec. 15, 2010).

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