divided Eleventh Circuit has just ruled that the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148, is unconstitutional.  See Opinion, State of Florida, et al. v. United States Department of Health and Human Services, et al. (Eleventh Circuit, Case No. 11-11021).  The Eleventh Circuit’s decision directly conflicts with the Sixth Circuit’s June 29, 2011 decision upholding the individual mandate.  See Opinion, Thomas More Law Center, et al. v. Obama, et al. (Sixth Circuit, Case No. 10-2388).  Interestingly, the Eleventh Circuit's 207-page majority opinion never cites the Sixth Circuit’s Thomas More Law Center opinion, though it is cited by the dissent.

The Eleventh Circuit panel included Chief Judge Joel Dubina, who was appointed by President George H.W. Bush, and Circuit Judges Frank M. Hull and Stanley Marcus, both of whom were appointed by President Bill Clinton.  In a jointly written majority opinion, Judges Dubina and Hull held that “the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional.”  The majority observed that “[t]his 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 problem confronted by Judges Dubina and Hull was the same problem with which the Sixth Circuit struggled in the Thomas More Law Center case—namely, the need to identify a constitutionally significant limiting principle for congressional power under the commerce clause.  Judges Dubina and Hull could not find one: “We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.”  At the same time, though, while the judges ruled that the key provision of the health care statute was unconstitutional, they did not set aside the entire statute (like Florida District Judge Roger Vinson had done when he ruled back in January).

Judge Marcus dissented.  Citing the Sixth Circuit’s Thomas More Law Center opinion, Judge Marcus wrote that the individual mandate is constitutional and that “the majority has ignored many years of Commerce Clause doctrine developed by the Supreme Court.”

The conflict now presented between the Eleventh and Sixth Circuits raises considerably the likelihood that the U.S. Supreme Court will grant cert on these cases.