In Thomas More Law Center v. Obama, a deeply divided panel of the U.S. Court of Appeals for the Sixth Circuit has upheld the individual mandate provision of the Patient Protection and Affordable Care Act (the new health care reform law) against a challenge that the mandate is unconstitutional on its face. Each of the three judges on the panel issued a separate opinion, highlighting different views:
- Two judges accept the government’s position that the mandate is a valid exercise of Congress’s power to regulate interstate commerce, in particular the interstate market for health services. However, one of these judges is much more cautious than the other about whether the mandate will be constitutional when applied to all circumstances that might arise in the future.
- The third judge dissents, ruling that the mandate exceeds Congress’s commerce powers on its face. This opinion analyzes the mandate as affecting the market for health insurance (not the market for health care services) and finds that Congress cannot constitutionally compel an individual to enter the market for insurance. The dissent does not address whether the individual mandate may be severed from the rest of the health care legislation. In a different case, in Florida, a district judge ruled that the individual mandate could not be severed, causing the entire health care reform statute to be unconstitutional. To read our legal alert on that case, click here.
- Two of the judges (one in a concurrence) conclude that the mandate cannot be justified by Congress’s taxing authority, finding that the payment required of an individual without health coverage is a penalty, not a tax. The third judge declines to address the tax issue.
The Sixth Circuit ruling is the first in what is expected to be a series of federal appellate court decisions that lead ultimately to resolution by the U.S. Supreme Court.