The Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act (collectively the "ACA") is a complex piece of legislation. Approximately 2,700 pages long and consisting of about 450 different parts, it is longer than Tolstoy's War and Peace. The constitutionality of the ACA has been challenged in numerous cases, collected by the Department of Justice on its website. In the discussion that follows, we review the cases decided on the merits, examining the main current legal challenges to the ACA.

Individual Purchase Requirement

Of the cases decided on the merits, the primary focus has been the "individual purchase requirement," which has also been called the "individual mandate" – the requirement that every U. S. citizen, other than those falling within certain specified exceptions (primarily on religious grounds),maintain a minimum level of health insurance coverage beginning in 2014 or pay a penalty as part of the individual's tax return.

Three district court cases have found the individual purchase requirement to be constitutional, while two district court cases have found that Congress exceeded its constitutional authority in imposing that requirement. Of the latter two cases, one found the offending provision severable from the rest of the ACA, and one found it was not severable, concluding therefore that the entire ACA was unconstitutional (that decision has been stayed pending appeal).

In chronological order, the cases are:

  • 10/7/2010 --Thomas More Law Center v. Obama, 720 F.Supp.2d 882 (E.D. Mich. 2010)
    • Judge George Steeh, a Clinton appointee
    • Constitutional
  • 11/30/2010 -- Liberty University, Inc. v. Geithner, 2010 WL 4860299 (W.D. Va. 2010)
    • Judge Norman Moon, a Clinton appointee
    • Constitutional
  • 12/13/2010 -- Virginia ex rel. Cuccinelli v. Sebelius, 728 F.Supp.2d 768 (E.D. Va. 2010)
    • Judge Henry Hudson, a G.W. Bush appointee
    • Unconstitutional but severable
  • 1/31/2011 – Florida ex rel. Bondi v. United States Dept. of Health and Human Services, 2011 WL 285683, as clarified by 2011 WL 723117 (N.D. Fla. 2011); see also 716 F.Supp.2d 1120 (earlier ruling on motions to dismiss)
    • This is the proceeding that was brought by the attorneys general and/or governors of twenty-six states
    • Judge Roger Vinson, a Reagan appointee
    • Unconstitutional
    • Not severable. (The judge noted that Congress declared the individual purchase requirement to be the cornerstone of the entire ACA, knew its constitutionality was going to be challenged in court, and yet specifically deleted the "severability clause" that had been in prior drafts of the bill and that is customarily included in complex legislation of this type. In his view, the only reasonable conclusion is that Congress wanted the entire ACA to rise or fall with the individual purchase requirement.)
    • Ruling stayed pending expedited appellate review
  • 2/22/2011 -- Mead v. Holder, 2011 WL 611139 (D. D.C. 2011)
    • Judge Gladys Kessler, a Clinton appointee
    • Constitutional

Status of Appeals. All five decisions are currently on appeal to the Circuit Courts of Appeal, and those appeals have either been expedited or requests for expedited appeals have been filed. The Fourth Circuit will hear oral argument in the Liberty University and Sebelius cases (conflicting decisions from the district courts in Virginia) on May 10. The Sixth Circuit will hear oral argument in Thomas More Law Center during its May 30 – June 10 sitting. Florida ex rel Bondi and Mead v. Holder (which is called Seven-Sky v. Holder on appeal) are still in the briefing stages in the Eleventh Circuit and the D.C. Circuit, respectively, with no oral argument scheduled. The plaintiffs in Sebelius have also filed a request for immediate Supreme Court review, prior to any decision by the Fourth Circuit, but that request is opposed by the government and is likely to be denied. All of the appeals have attracted numerous amicus briefs.

As noted by Judge Vinson, the judge who struck down the entire ACA, the constitutional question is an issue "about which reasonable and intelligent people (and reasonable and intelligent jurists) can disagree," but one thing almost everyone agrees on is that "the Constitutionality of the Act is an issue that will ultimately have to be decided by the Supreme Court of the United States."

Predictions Regarding Outcome. In the academic community, most constitutional law scholars seem to believe that the individual purchase requirement is constitutional, at least under the current case law. For example, leading professors of Constitutional Law at Harvard (Laurence Tribe and Charles Fried), Yale (Jack Balkin and Akhil Amar), and Columbia (Gillian Metzger and Trevor Morrison) have gone on record as stating the they believe the law is constitutional, as has Erwin Chemerinsky, the author of a leading textbook on constitutional law. However, at least one constitutional scholar was careful to warn that existing precedent is not the end of the story, as "the current Supreme Court has already shown itself to be willing to break from long-standing precedent in major cases," and that "precedent rarely dictates how the court will rule" on "hot-button, partisan issues." (Adam Winkler, Professor of Constitutional Law at UCLA.)

Many lay people seem to view the district court decisions as purely political, with judges appointed by Democratic presidents upholding the law, and judges appointed by Republican presidents striking it down. Using that overly simplistic analysis, the law ultimately would fail, as the current Supreme Court consists of five Republican appointees (Alito, Kennedy, Roberts, Scalia, and Thomas) and four Democratic appointees (Breyer, Ginsburg, Kagan, and Sotomayor).

Characterizing this as a purely political issue, however, does a great disservice to the integrity of the federal judiciary. All of the district court opinions issued to date are scholarly, thorough, and well-reasoned. (For example, Judge Vinson traces the development of the Commerce Clause jurisprudence from the ratification of the Constitution through to the present.) They just come to different conclusions. It is much more accurate to describe this as an ideological dispute concerning the appropriate limits of federal power under the Constitution, with the Republican appointees placing greater emphasis on the notion that the Constitution creates a federal government of limited and enumerated powers. In the words of Judge Vinson, "[i]f Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be difficult to perceive any limitation on federal power . . . . Surely this is not what the Founding Fathers could have intended." It is not hard to imagine that this argument will resonate with a majority of the current justices, who are ideologically conservative and who have shown a willingness to put new twists on old doctrines. But the Supreme Court is complicated and difficult to predict, and in the past decade commentators have been surprised by several cases decided under the Commerce Clause.

Employer Coverage Requirement

The plaintiffs in Liberty University and Florida ex rel. Bondi also challenged the constitutionality of the provision requiring large employers to provide minimum levels of health insurance coverage to their employees. Both courts rejected that challenge, noting that it is well-established under the Commerce Clause that Congress has the authority to regulate the terms and conditions of employment (such as laws requiring employers to pay minimum wages, overtime, laws related to collective bargaining, etc.), and can extend those laws to states acting in their capacity as employers. Requiring a large employer to provide health insurance coverage to its employees is no different. "Plaintiffs' depiction of the employer coverage provision as requiring employers to purchase a product against their will is misleading; the employer coverage requirement is more accurately described as regulating the terms of the employment contract," and it therefore passes constitutional muster.

The other three cases did not challenge the employer coverage requirement.

Attempted State Nullification

Legislatures in Virginia, Utah, and Idaho have enacted state statutes declaring that their residents cannot be required to purchase health insurance. (Those state statutes provided the basis for the states' standing to challenge the individual purchase requirement in Sebelius and Florida ex rel. Bondi.) Other Republican-controlled states have enacted or introduced similar "nullification" legislation. These statutes seem to be largely symbolic gestures, as it is well-settled that the Supremacy Clause of the Constitution prevents states from opting out of federal legislation. If Congress has the constitutional power to enact the individual coverage requirement, then federal law trumps any state law to the contrary. If not, then the federal law fails because it is unconstitutional and not because of any contrary state law.

Recommended Further Reading

Readers interested in the actual arguments being advanced in these cases can turn to a detailed review of the constitutional challenges asserted.