Yesterday, the United States District Court for the Northern District of Florida invalidated the individual mandates provision of Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 1501 (March 23, 2010), and declared that the Act (with the exception of certain Medicaid provisions) was unconstitutional for want of severability. The United States District Court for the Eastern District of Virginia also struck the individual mandates provision. That decision currently is before the United States Court of Appeals for the Fourth Circuit. Two other district courts (Western District of Virginia and Eastern District of Michigan) have upheld the individual mandates provisions under the Commerce Clause.

These cases raise questions concerning the next steps available to the parties. Under normal circumstances, appeals would have to be filed in the appropriate circuit court and eventually, would reach the U.S. Supreme Court. There is, however, a rarely used procedure available for direct review by the Supreme Court. Specifically, under 28 U.S.C. § 1254(2), a court of appeals may certify a question or proposition of law to the Supreme Court and the Court may, in its discretion, accept the certificate, and, on its own motion or that of a party, may consider and decide the entire matter in controversy. See Rule 19 of the Rules of the Supreme Court of the United States. Given the fact that states are required to be in a position to implement PPACA by 2014, and in light of the uncertainty surrounding the constitutionality of PPACA and its impact on private as well as public parties, these decisions may warrant such certification. Certification can by requested either by the court, on its own motion, or at the suggestion of a party.