Yesterday the 11th Circuit Court of Appeals heard arguments on the constitutionality of the Affordable Care Act. The Court, which sits in Atlanta, Georgia, heard the appeal of the ruling by District Judge Roger Vinson of Florida that the unconstitutionality of the individual mandate made the entire Affordable Care Act unconstitutional.
The individual mandate has been the focus of most of the challenges to the federal law passed in 2010. The mandate would require that all citizens purchase health insurance.
Courts and the intrusion of politics
While "court reading” is a very uncertain game, it is a popular pastime to try and guess the likely outcome of an appeal based on the questions asked by the Court. Yesterday the three judge panel did engage in spirited questioning and on- lookers report that they appeared to be concerned about the requirement that all citizens be required to buy health insurance.
The arguments lasted for almost three hours and both sides were questioned intensively not only about the individual mandate but about the severability of the law. Two questions need to be answered. Is the individual mandate which requires all citizens to buy health insurance beyond the authority of Congress and if it is an unconstitutional reach does that make the entire law fall?
Speculation as to how the various courts will rule seems to be based in large part on who appointed the sitting justices. The 11th Circuit panel consisted of judges appointed by both Presidents Clinton and George H.W. Bush. But one of the Clinton appointees had been appointed to the federal district court by President Reagan.
Many court watchers believe that the 11th Circuit is the Court most likely to strike down all or part of the law. An earlier appeal which was heard in the 4th Circuit Court of Appeals in Richmond, Virginia, is more likely to go the other way. The judges in that case seemed less adversarial on the issue of the individual mandate. But no decision has been forthcoming and it is always unwise to try to predict an actual decision.
Getting to the Supreme Court
No matter what happens but especially in the likely event that several federal appeals courts rule differently on the law, the Supreme Court will be the final arbiter. The timing of the decision of the U.S. Supreme Court may be critical.
Given the normal schedules of the appellate courts rendering decisions it is thought that the case might reach the U.S. Supreme Court before the 2012 election. The 11th Circuit is fairly efficient rendering most decisions in six to seven months.
However, the losing party on an appeal heard by a three judge panel can ask for a secondary review by the entire appeallate court, called an “en banc” hearing. If such a procedure was requested, that could push the ultimate decision in the Supreme Court to after the 2021 election.
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