If you have been following our blog for the last several months, you know that we’ve been covering all of the headline-making decisions in the legal challenges to the mandate requiring individuals to purchase health insurance under the recently enacted Patient Protection and Affordable Care Act, Public Law 111-148.  The Eighth Circuit is poised to become the latest federal appellate court to weigh in on the health care battle, but there is a real question whether it will even reach the merits of the individual mandate’s constitutionality. 

The Eighth Circuit yesterday heard oral arguments in the challenge to the individual mandate brought by Missouri Lieutenant Governing Peter Kinder and a 21-year-old uninsured Missouri resident.  See Kinder, et al. v. Geithner, et al. (8th Cir. Case No. 11-1973).  Kinder’s lawsuit is supported by 21 states, but the United States District Court for the Eastern District of Missouri dismissed the lawsuit back on April 26, 2011 on the ground that plaintiffs lack standing given that the individual mandate does not go into effect until 2014.  Yesterday, during oral argument, the Eighth Circuit similarly grilled plaintiffs’ attorney on whether plaintiffs have standing to challenge the individual mandate.  The take away message appears to be that the Eighth Circuit will affirm the district court on standing grounds (although it is always hazardous to guess how an appellate court will rule based solely on questions raised at oral argument).

If the Eighth Circuit affirms the Missouri district court, it would join the Third and Fourth Circuits in holding that plaintiffs challenging the individual mandate lack standing.  By contrast, as we have previously reported, the Sixth and Eleventh Circuits have held that plaintiffs do in fact have standing.  Cert petitions were recently filed in both the Sixth and Eleventh Circuit cases, and opponents of the individual mandate are hopeful that the U.S. Supreme Court will hear the case in March 2012.  Of course, we will let you know as soon as the Supreme Court makes its decision.