Is Obamacare constitutional? Will the Supreme Court uphold the individual mandate?

Three of the 13 federal appellate courts have now ruled on Obamacare.  The 4th and the 6th Circuits upheld the individual mandate, whereas the 11th Circuit deemed it unconstitutional.  (The 6th Circuit is where I clerked.  It covers Tennessee, Kentucky, Ohio and Michigan).

In order to resolve the split amongst the circuits, the U.S. Supreme Court will likely hear and decide the dispute during the next Term of court that starts this month.  The Term runs for approximately 9 months, which means that a decision on the issue — assuming the Court ultimately agrees to hear the cases during this next Term — would be handed down no later than the end of June 2012.

The timing of the decision would be key.  Indeed, Obamacare will no doubt be a central issue for both sides as they head down the final stretch of the presidential campaign, and a timely decision by the Court would provide needed certainty on the issue, which would in turn allow the candidates to engage in more informed debate about how to move forward.

Below is an interesting excerpt from an article by Professor Erwin Chemerinsky in this month’s edition of the ABA Journal:

The most eagerly anticipated cases, though, are those involving the constitutionality of the individual mandate in the Affordable Care Act. Three circuits have decided the issue, and they have come out three different ways. In June, the 6th U.S. Circuit Court of Appeals, in a 2-1 decision, upheld the individual mandate as constitutional. Thomas More Society v. Obama. By contrast, in August, the 11th U.S. Circuit Court of Appeals, in a 2-1 decision, declared this unconstitutional. Florida ex rel. Attorney General v. U.S. Department of Health and Human Services.

And in September, the 4th U.S. Circuit Court of Appeals, in a 2-1 ruling, found that the individual mandate is actually a tax and thus cannot be enjoined under a federal law, the Anti-Injunction Act, which prohibits federal courts from enjoining the collection of taxes. Liberty University v. Geithner. The issue was argued Sept. 22 before a panel of the U.S. Court of Appeals for the D.C. Circuit. A fourth decision is likely to be forthcoming soon.

In light of the importance of the issue and the split among the circuits, it seems certain that the court will hear the issue this term. Already petitions for certiorari have been filed from the 6th and 11th Circuit cases.

It is interesting that, with one exception, every federal judge appointed by a Democratic president has voted to uphold the individual mandate, and, with one exception, every federal judge appointed by a Republican president has voted to declare it unconstitutional. If the Supreme Court were to follow this pattern, the law would be struck down 5-4. But that may be far too simplistic because the court is likely to consider this the most important challenge to the scope of congressional power since the mid-1930s.

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