Recently, the Eleventh Circuit U.S. Court of Appeals, in Florida v. HHS, partially affirmed a lower court decision which found the individual mandate of the Affordable Care Act unconstitutional. Earlier this year, the Sixth Circuit in Thomas More Law Center v. Obama, came to the opposite conclusion, upholding the mandate. So far every federal court addressing the merits of this challenge rejects the government's claim that the mandate (with resulting penalty) is an exercise of its very broad taxing power. Rather the issue turns on whether the mandate is a constitutional exercise of Congress' power to regulate interstate commerce. Although the power to regulate interstate commerce has also been interpreted very broadly by the Supreme Court, using this power to mandate the purchase of insurance is unprecedented and presents an important legal question about the scope of the interstate commerce clause. This creates a circuit split on a politically and legally divisive issue that will ultimately be decided by the U.S. Supreme Court.
Despite striking down the mandate, the Eleventh Circuit rejected the part of the lower court's holding that would have invalidated the entire health reform law. The Eleventh Circuit's holding is consistent with the District Court's ruling in Virginia v. Sebelius discussed in greater detail at my prior blog post Will the battle over the individual mandate threaten the entire health reform law? Both courts emphasized the presumption in favor of severability: "Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem, severing any 'problematic portions while leaving the remainder intact." Given the lack of clear legislative intent regarding severability, and the fact that many provisions in the law were not directly tied to the mandate or even related to private insurance regulation, the Eleventh Circuit held that the mandate should be severed from the rest of the law.
Click here for a chart of key decisions about the constitutionality of the individual mandate with links to the cases. Go to Health Care Justice Blog for more information on each of the cases and links to the decisions.
