Thursday, September 29, 2011

Looks Like Health Care's Hittin' SCOTUS

Big day yesterday! The federal government petitioned the Supreme Court to hear an appeal from the 11th Circuit ruling that the health care reform law (aka "ObamaCare", actually known as "Patient Protection and Affordable Care Act") was unconstitutional. Just for good measure, the challengers (26 States!) filed their own petition.

On the big question, whether the individual mandate exceeds Congress's power under the commerce clause, the Eleventh Circuit held that the law is unconstitutional. The Sixth Circuit went the other way, holding it was a-OK. And the Fourth Circuit kinda ducked the issue on procedural grounds - but interpreted the mandate as a tax (with all due respect to the Fourth Circuit, I don't think the "tax" theory is gonna fly).

With this kind of circuit split, and the federal government agreeing with a majority of state governments that the Supreme Court should decide the issue... how can the Supreme Court say no? Not to mention a host of district courts splitting on the issues. We should get one of the most interesting commerce clause SCOTUS opinions in our nation's history!

I said "should" - they could always just punt on the big issues with some kind of standing-based argument. Or, we could get some kind of messy split with a few Justices holding it's a tax, some holding it's OK/not-OK under the commerce clause, others finding lack of standing - but let's cross our fingers for a nice, clean, commerce clause ruling.

HT: Volok Conspiracy with links to the petitions courtesy of ACALitigation Blog.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.