Setting up a circuit conflict over the most controversial part of the health care reform law, a divided panel of the U.S. Court of Appeals for the 11th Circuit has just ruled that the "individual mandate" feature exceeds the authority of Congress to legislate under the Constitution.
"This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives," the ruling states.
That judgment runs counter the decision in late June by the U.S. Court of Appeals for the 6th Circuit that upheld the mandate as a justifiable exercise of congressional Commerce Clause power. The mandate requires most individuals to obtain at least a minimum of insurance coverage, as a way of spreading health care costs to a larger pool of individuals.
The likelihood that the Supreme Court would ultimately decide the issue was never in much doubt, but today's decision makes that prospect even more certain, because the most common justification for Supreme Court review is now met: a conflict between two circuits. It also makes it more likely that the battle will be joined at the high court in the coming term, before next year's presidential election.
“It will be incumbent on the Supreme Court to determine the ultimate future of the health care law," said Karen Harned of the National Federation of Independent Businesses, reacting to today's news. The NFIB was the only private plaintiff in the 11th Circuit case, which was brought initially by 26 states. "The court reaffirmed what small businesses already knew – there are limits to Congress’ power. And the individual mandate, which compels every American to buy health insurance or pay a fine, is a bridge too far."
The text of the ruling is hard to come by, with the 11th Circuit web site apparently overloaded. But early wire reports indicate that the appeals panel, while striking down the individual mandate, stopped short of ruling that the entire health care reform law was invalid.
Check back for further updates.
UPDATE: Health care law expert J. Peter Rich of McDermott Will & Emery says the Justice Department has "a tough decision to make" in the wake of today's ruling. It could seek en banc review from the full circuit, said Rich, but that runs the risk that the circuit might rule that the individual mandate is not severable from the rest of the law, which would have the effect of striking down the entire law. Rich predicts that in any event, the Supreme Court is likely to wait for the 4th Circuit to issue its pending ruling on the health care law before deciding when and how to proceed.
UPDATE: The 304-page text of the 11th Circuit ruling is now available.
For more information on the decision, please see this report from The National Law Journal's sister publication in Atlanta, The Daily Report.