All eyes have been on the cert petitions before the Court in the various challenges to the Patient Protection and Affordable Care Act (“PPACA”). On November 14, 2011, the Court granted 3 of the 5 petitions for writs of certiorari that were conferenced on November 10, 2011. Prior to this grant, the Circuits had split on numerous key issues:
The Sixth Circuit was the first court of appeals to hear a challenge to the PPACA, and that court ruled that the individual mandate—requiring all individuals to maintain minimum essential health insurance coverage—was within Congress’s authority under the Commerce Clause.
The Eleventh Circuit issued the next decision regarding challenges to the PPACA. To begin, the Eleventh Circuit upheld the expansion of Medicaid. Unlike the Sixth Circuit, however, the Eleventh Circuit determined that the individual mandate overstepped the power allotted to Congress under the Commerce Clause. Finding that the individual mandate was severable from the other provisions of the PPACA, the Eleventh Circuit upheld the remainder of that Act.
The Fourth Circuit was the last to weigh in. It ruled 2-1 that a constitutional challenge to the PPACA was premature based upon its determination that the individual mandate is a form of federal tax and the Anti-Injunction Act bars suits seeking to block enforcement of a tax measure before it goes it effect.
Late to join the fray, the D.C. Circuit just last week issued its decision regarding challenges to the PPACA. In a 2-1 decision, the majority sided with the Sixth Circuit and upheld the individual health insurance mandate as constitutional. The dissent, on the other hand, sided with the Fourth Circuit and would have determined that the challenges were premature. Acknowledging its tardiness in joining the discussion, the majority opinion begins: “Since so much has already been written by our sister circuits about the issues presented by this case—which will almost surely be decided by the Supreme Court—we shall be sparing in adding to the production of paper.”
As expected by Supreme Court observers, and as explicitly anticipated by the D.C. Circuit just days before, the Supreme Court will consider the key issues of dispute, including:
- Whether the Medicaid expansion provisions are constitutional;
- Whether the individual health insurance mandate is constitutional;
- If the individual health insurance mandate is nullified, whether that provision may be severed from the rest of the PPACA;
- Whether the challenges, specifically the challenges brought by the states, are barred by the Anti-Injunction Act.
In an historic move from the modern Court, the Court has decided to allow a total of 5 ½ hours for oral argument of these issues. Oral argument likely will be scheduled for March, and observers expect an opinion from the Court near the end of the Term in June.