On September 28, 2011, the Department of Justice (DOJ) filed a petition in the United States Supreme Court seeking review of the August 12, 2011, ruling by the U.S. Court of Appeals for the Eleventh Circuit declaring the individual mandate provisions of the Patient Protection and Affordable Care Act (the Act) to be unconstitutional.

The Eleventh Circuit’s 2-1 decision held that the individual mandate exceeded the bounds of the Commerce Clause, stating that while Congress has broad authority to regulate interstate commerce, “what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”  See State of Florida v. U.S. Dep’t of Health and Human Servs., No. 3:10-cv-00091-RV-EMT (11th Cir. 2011).  The circuit court upheld the remaining provisions of the Act, finding that the individual mandate could be severed from the rest of the law.  It further ruled the Act’s expansion of the Medicaid program to include a larger patient population to be constitutional.

In addition to the DOJ’s petition, the attorneys general of 26 states that had challenged the constitutionality of the Act filed a petition in the Supreme Court seeking review of the rulings on the severability of the individual mandate and the expansion of Medicaid.

Already pending before the Supreme Court is a petition filed July 26, 2011 by The Thomas Moore Law Center, a public interest law group, seeking review of the U.S. Court of Appeals for the Sixth Circuit’s 2-1 ruling that the individual mandate of the Act is a constitutional exercise of congressional authority.  With the split in the circuits, it is expected that the U.S. Supreme Court will grant review and deliver a decision before the end of the current term in June 2012.

The DOJ petition is available by clicking here. The States’ petition is available by clicking here.