Section 1501 of the Affordable Care Act22 requires all individuals (with limited exception) to buy health insurance or pay a penalty to the federal government, starting in 2014. Challengers of this “individual mandate”—including a majority of States—argue the federal government exceeded its authority under the Constitution with this mandate. The Obama administration contends that passage of the individual mandate is a valid exercise of the federal government’s authority under, among other things, the Commerce Clause of the Constitution.23

Practitioners have agreed that the debate must ultimately be settled by the United States Supreme Court.24 The big question has not been if the Supreme Court would decide the issue but when. And, specifically for some, whether its decision would come prior to the 2012 election. It now looks like all the stars have aligned and the issue is ripe for Supreme Court review, with a decision possible before November 2012.

The Supreme Court is not required to review the issue. Rather, a Constitutional issue like this is reviewed only if there is a request for review (a writ of certiorari) by a party to a case, and at least one United States court of appeals “has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”25

To date, two26 of the over two dozen reported cases challenging the individual mandates have progressed through the judicial system and have received substantive review at the appellate level. Those two decisions do not agree on the constitutionality of the individual mandate.

The Sixth Circuit, reviewing Thomas More Law Ctr. v. Obama, agreed with the administration and the district court that the individual mandate is a legitimate exercise of federal power under the commerce clause, essentially accepting the argument that an individual’s inactivity—the decision not to buy insurance—is actually activity that impacts interstate commerce. The court opined that the government need only show a rational basis for passing the law, a low standard that effectively guarantees the government’s actions are constitutional.

The Eleventh Circuit agreed with twenty-two state attorneys general and four governors and the district court in the Florida ex rel. Atty. Gen. v. U.S. Dep’t of Health & Human Services case that the individual mandate is unconstitutional, exceeding the limited scope of federal power. The Eleventh Circuit agreed with the district court’s determination that inactivity does not equal activity and that a person’s decision to not buy a product cannot be federally regulated under the Commerce Clause. However, the district court also ruled the entire Act unconstitutional because it lacked a severability clause. A severability clause is a routine provision in federal legislation that states that a finding that one provision of the law is unconstitutional will not render the whole law unconstitutional. The Eleventh Circuit, however, did not agree with the district court’s finding insofar as it invalidated the entire law.

In September the administration chose not to have the Eleventh Circuit’s decision re-reviewed by all of the Circuit’s judges. Days later the administration submitted its writ of certiorari asking the Supreme Court for review. Florida v. Dep’t of Health & Human Services, No. 11-400 (2011).

The decisions in the Sixth and Eleventh Circuits, accompanied by the administration’s request, complete the requirements for the Supreme Court to review the constitutionality of the individual mandate. Most practitioners believe that they will review these cases in the October 2011 session. This means that a decision about the constitutionality of the individual mandate could be delivered by mid- or late-2012, just weeks before the 2012 election.