Recently expedited activities in the Fourth and Sixth Circuit Courts of Appeal may accelerate U.S. Supreme Court judicial review of the constitutionality of the “individual insurance mandate” of The Patient Protection and Affordable Care Act1 (“PPACA”).

All four of the currently filed federal PPACA District Court appeals2 were recently set for expedited hearings between May 10 and June 10, 2011. In one of these, Virginia v. Sebelius (Eastern District, Virginia), the Commonwealth of Virginia filed for expedited review last week with the U.S. Supreme Court, citing the “imperative public importance” of the constitutionality of PPACA. On February 8, 2011, the Sixth Circuit Court of Appeals agreed to expedite oral arguments regarding the constitutionality of PPACA, joining an expedited hearing schedule set by the Fourth Circuit. It is expected that the identity of each three-judge panel and the exact dates and times for these hearings will be announced two weeks before the hearings.

The Fourth and Sixth Circuit Courts of Appeal will each address two lower court decisions: one upholding and one rejecting the constitutionality of the individual insurance mandate. Sometime between May 10 and May 13, the Fourth Circuit will conduct oral arguments in: Liberty University v. Geithner (Western District, Virginia), which upheld the validity of the individual insurance mandate, and in Virginia v. Sebelius (Eastern District, Virginia), which found the individual mandate provision unconstitutional and ordered severance, saving the remainder of PPACA. Sometime between May 30 and June 10, 2011, the Sixth Circuit will conduct oral arguments in: Thomas Moore v. Obama (Eastern District, Michigan), which upheld the validity of the individual mandate, and in Florida v. H.H.S. (Northern District, Florida), which found the individual mandate unconstitutional but declined severance of the provision, thereby invalidating all of PPACA.

Any eventual U.S. Supreme Court review may ultimately decide what constitutes economic activity under the Commerce Clause. Under the “aggregation” concept, as discussed by several U.S. Supreme Court decisions, H.H.S. argues in all four Court of Appeal actions that multitudes of individual decisions to “participate or not” in the health insurance market have a critical collective effect on interstate commerce. Under several U.S. Supreme Court decisions, the “aggregation” concept has permitted past federal regulation of solely intrastate activities.

Appellant Thomas Moore’s position in Thomas Moore v. Obama is that the individual mandate violates the Commerce Clause of the Constitution because it seeks to regulate “inactivity” – not commercial or economic activity. This appellant argues that no federal legislation in American history has ever regulated a person’s “inactivity.”

In Thomas Moore v. Obama, five amicus briefs were filed urging the Sixth Circuit Court to reverse Judge Steeh’s decision upholding the constitutionality of the individual mandate, and nine amicus briefs were filed supporting the lower court ruling upholding the provision, including one in support filed by nine States.3 This multi-state brief argues state-by-state health care reform efforts have failed because a national health care crisis requires a national solution. The multi-state brief also argues the necessity of the individual mandate by describing the economic consequences of “adverse selection” that would result from no individual mandate. This is an insurance concept that means everyone - ranging from the very healthy to the very sick - must pay premiums into the system for the system to economically survive. Requiring everyone to have health insurance, it is argued, also eliminates the need for health care insurers to adversely price benefits, or limit coverage for the less healthy applicants or for those with pre-existing conditions.

President Obama’s brief in Thomas Moore argues national universal health care is greatly needed, and because the personal insurance mandate is such an essential aspect, it substantially affects interstate commerce. This brief further argues that because the individual mandate regulates the means of payment for health care services, when this class of economic activities is aggregated to the entire public, this substantially affects interstate commerce. Appellant’s reply brief counters that the individual mandate regulates neither the “means of payment” for health care services nor “the practice of obtaining health care without insurance.”

The U.S. Supreme Court may ultimately decide the constitutionality of PPACA based on the current court’s interpretation of federalism and the commerce clause under the U.S. Constitution.