In a decision issued yesterday, yet another appellate court weighed in on the constitutionality of the individual mandate. Here are some highlights:

The case was Seven-Sky v. Holder, and it was a 2-1 decision of of the United States Court of Appeals for the District of Columbia Circuit.

The panel that decided the case was comprised of Judges Brett Kavanaugh (a G.W. Bush appointee), Harry T. Edwards (a Carter appointee), and Laurence H. Silberman (a Reagan appointee). That is two Republican appointees and one Democrat, so it is not a decision along appointing-party lines. These are well-respected judges.  

The majority opinion (written by Silberman, and in which Edwards concurs) first concludes that challenges to the individual mandate are not barred by the Anti-Injunction Act (which bars pre-enforcement challenges to the assessment and collection of taxes). It then goes on to hold that the individual mandate is constitutional. Silberman seems to take a very broad view of federal power under the Commerce Clause. In his view, as long as the activity being regulated substantially affects interstate commerce, the limits on Congress’ power to regulate under the Commerce Clause are essentially those provided by the political process, rather than any limits in the Constitution. He rejects the argument that Congress can regulate “activity” but not ”inactivity” as inconsistent with the text of the Constitution and prior Supreme Court cases. And he notes that while requiring individuals to purchase insurance is surely an encroachment on individual liberty, it is no more of an encroachment than many others laws that the Supreme Court has upheld.

Kavanaugh filed a lengthy dissent contending that the court lacks jurisdiction to hear the case because it is barred by the Anti-Injunction Act. He would dismiss the case and require the challengers to refile in 2014 when the penalty for failure to purchase insurance has been imposed upon them. They can sue for a refund and raise the constitutional issues at that time. He takes no position on the constitutionality of the individual mandate.

Next steps:

  • The challengers could request a rehearing en banc by the full D.C. Circuit (unlikely), or
  • File a petition for certiorari asking the Supreme Court to decide the case (likely).  

This case in the context of other appeals:

  • While important, the D.C. Circuit’s decision will not be the final say on the constitutionality of the individual mandate. The Supreme Court will probably have the final say.
  • Seven-Sky is not yet before the Supreme Court and may not be the vehicle the Supreme Court uses to address these issues. However, the Supreme Court would certainly take the case into account in reaching any decision.
  • There are five petitions for certiorari currently pending before the Court. The Court is apparently going to begin reviewing those petitions at its Conference this Thursday, November 10.
  • Although a grant of certiorari is not assured, it seems likely. This is an important issue, there is a split in the Circuits, and all sides agree that the Court should take on the controversy.
  • The Justices have discretion to grant cert. in all, some, or none of those cases. They can also decide to table the petitions and come back to them later. They do not have to make a decision on Thursday.
  • If the Court grants review in one or more of these cases in the near future, the Court’s decision would likely come down during the current term of the Court, which is expected to run until near the end of June 2012.
  • If the Court does not act relatively soon, any decision would most likely be delayed until the following term.