The great “Constitutionality of the Health Reform Bill” contest is now tied, one to one.  Earlier this summer, the Sixth Circuit, which hears appeals from federal courts in Michigan, Ohio, Kentucky, and Tennessee, ruled, two to one, that the bill is constitutional.  Today, the Eleventh Circuit, which hears appeals from federal courts in Florida, Georgia, and Alabama, ruled, two to one, that it is unconstitutional.

The main message of this opinion is that the Supreme Court is going to decide this issue.  Before today, there was some chance that all the circuit courts would agree and the Supreme Court would not get involved; the circuit split created by the 11^th Circuit decision makes that highly unlikely.  It is not impossible – in either case the losing side can ask the entire court (not just the three judges on that particular panel) to rehear the appeal, taking it “en banc.”  So the full Sixth or Eleventh Circuit (or both!) could overturn their panels.  It seems more likely, though, that the full courts, expecting the Supreme Court ultimately to resolve the issue, will let these decisions speed up to the next level.

The two courts disagreed on the fundamental issue of the constitutionality of the individual mandate.  There is nothing precisely like it in American history, which means that its constitutionality really is an open question – no earlier decision clearly answers this specific question.  My own view is that the Administration’s legal arguments are better, but I do think reasonable people can disagree.  (And, of course, unreasonable people can, and will, also disagree or agree with me on the legal issues and, even more, on the non-legal issues around the act.)

There are a couple of other legal notes of interest in today’s decision.  The Eleventh Circuit did rule in favor of the Administration on several points.  First, it did not accept the plaintiffs’ argument that the Act’s Medicaid expansion violated the states’ rights under the Tenth Amendment.  Second, it disagreed with the district court over the severability of the individual mandate, holding that the individual mandate would be severed from the rest of the Act – that its invalidation would not invalidate the rest of the statute.  On the other hand, even the dissenting judge agreed with the majority that the Administration could not successfully justify the Act under the federal government’s power to tax.

Several other appellate courts are also likely to weigh in on various aspects of the bill in the next few months.  My guess is that the Supreme Court will agree to hear several of the appeals.  One big question will be whether it ends up hearing them in the spring of 2012, in which case a decision would normally be expected by early July at the latest; or whether it hears arguments in the fall of 2012, in which case the decision will come after the next election.   A majority of the Court may not want to have this ruling injected into the heat of a Presidential campaign, or a majority may, or a majority may want to proceed without paying any attention to that question.  (Or there may not be a majority in any of those directions.)  That will be extremely interesting to watch- or, more accurately, to speculate about, as we are unlikely to get much information on why the Court sets the timing the case however it does.

Of course, the biggest question is how will the Supreme Court rule and on that I have little insight to offer.  I think it should find the Act, and, in particular, the individual mandate, within Congress’s constitutional power, but I could easily see it going the other way.   I would not be too surprised if it went in either direction – I will be surprised if the decision, either way, is unanimous.

One important note – this case, like the earlier decision, provides some good news for those who think judicial decisions are not solely about politics.  The Eleventh Circuit panel included one judge named by President George H.W. Bush and two named by President Clinton. The Clinton-appointed judges split.  In the earlier Sixth Circuit decision, the majority, in favor of constitutionality, included one judge appointed by President George W. Bush and one by President Carter, with the dissent from a judge appointed by President Reagan.  So the three judges on these appeals panels who were appointed by Democrats split two to one in favor of the Act; the three appointed by Republicans split two to one against the Act.  And, in both cases, the majority and the dissenting opinions were solid, well-crafted legal arguments, certainly not political hackwork.  Judicial decisions are not just politics – which we should all find somewhat comforting.

Hank Greely

Stanford Law School