PPACA in the Federal Courts: Constitutional Within the Commerce Clause?


Several lawsuits have challenged the constitutionality of the Patient Protection and Affordable Care Act of 2010 (“PPACA”). Most of them focus on the “requirement” in PPACA Section 1501 and new Chapter 48, Section 5000A of the Internal Revenue Code. This “requirement,” now known as the “Individual Mandate” (the “Mandate”), occupies 6 of the 900 pages of PPACA’s final version. The Mandate will require most everyone to buy “minimum essential coverage” health insurance by 2014 or incur a monetary penalty to be paid with one’s Federal income tax return. Several groups are exempt from the Mandate, some based on religious practices (including those who oppose health insurance in principle), and people in prison. Other exceptions include persons “not lawfully present” in the U.S., an ironic collection of overseas U.S. nationals and aliens present but not “lawfully present” in the U.S.

The Federal courts, ultimately the justices of the Supreme Court of the United States (the “Supreme Court” or “the Court”), will be asked to determine whether PPACA passes constitutional scrutiny under the Constitution of the United States (the “Constitution”). They will do so under the doctrine of “judicial review,” established by the Court itself in the 1803 case of Marbury vs. Madison. The fate or future of PPACA will be shaped by debates and votes among these Federal judges, with ultimate decisions by the Court whether it accepts an appeal or allows lower court rulings to stand. Supreme Court watchers already are studying closely the writings and speeches of Justice Anthony Kennedy, hoping to discern where his potential swing vote might turn a 5-4 decision.

Federal courts are grouped into twelve regional “Circuits” (see map attached). The courts within each Circuit consist of Federal trial courts, known as U.S. District Courts, and a Federal appellate court, a U.S. Court of Appeal. In general, these trial and appellate courts rule on matters of Federal law prior to review by the Supreme Court. Several Circuit Courts of Appeal have considered PPACA litigation. This white paper sketches four cases in three Circuits where Federal judges have ruled on the Mandate and/or PPACA. On April 25, the Supreme Court denied a petition to short-cut one of the appeals directly to that Court, so the process will wend its way through the Circuit Courts of Appeal over the next several months. In this classic American constitutional drama, one can follow the interplay of policy, economics, law, geography and politics (note, e.g., the presidential appointments of the judges and their subsequent confirmation by the U.S. Senate). After the cases, we summarize the arguments over the “Commerce Clause” of the Constitution at the heart of this constitutional debate.

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Published In: Administrative Agency Updates, Constitutional Law Updates, Consumer Protection Updates, Health Updates, Insurance Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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