Following Friday's oral arguments about the constitutionality of PPACA's individual insurance mandate in the Seven-Sky v. Holder case and in anticipation of the government's filing tomorrow in the U.S. Supreme Court, we thought it might be helpful to recap where the courts are on the issue.  So far, the score in the courts of appeals is tied:

  • 6th Circuit says the mandate is lawful (Thomas More Law Ctr v. Obama.pdf);
  • 11th Circuit says the mandate is beyond Congress' power, but decided that only the individual mandate was a problem and the rest of the act didn’t have to be stricken as the trial court had initially ruled (Florida v. DHHS.pdf); and
  • 4th Circuit didn’t decide the constitutional question but ruled in two separate decisions that the federal courts lacked jurisdiction to decide the question at this point due (Virginia v. Sebelius.pdf on standing grounds and Liberty University v. Geithner.pdf due to the Anti-Injunction Act).  We’ll be posting more on the impact of Liberty University separately, as it has implications for when (and if) we’ll see a decision on the individual mandate from the U.S. Supreme Court.

Oral arguments before the D.C. Circuit in the Seven-Sky v. Holder case were held last Friday, September 23.  The 8th Circuit will hear arguments about standing issues in Kinder v. Geitner on October 20, 2011.  In both cases, we probably won't see a decision for several months.

Even though there is a circuit split (6th versus 11th), the Supreme Court still has discretion over whether to hear any of the cases on further appeal.  The request for Supreme Court review in the Thomas Moore case is currently pending, with the government having received an extension on its brief to the end of September.  Briefs about whether the Court should hear the Florida v. HHS case or the two 4th Circuit cases aren’t due for several months and likely wouldn’t be considered by the Court in time to have those cases heard and decided by this summer.

On its way to the appellate courts is the case recently decided by the federal court in Pennsylvania, Goudy-Bachman v HHS.pdf.  There, the trial court ruled that the individual mandate was unconstitutional because it governed conduct that preceded any transaction that could be properly reached by Congress’ Commerce Clause powers.  The court also ruled that the community rating and pre-existing condition portions of PPACA were inextricably connected to the individual mandate, so they were also stricken.  It will be several months at least before there is significant action on this case in the court of appeals.

More details on these cases can be found at the SSD Sixth Circuit blog or on the ACA Litigation blog.