By Beth Ensell, Albany Government Law Review
On March 23, 2010, President Barack Obama signed the Patient Protection and Affordability Care Act (PPACA) into law. The law added a provision to the U.S. Tax Code, which requires every citizen, national, or alien lawfully in the United States, to maintain “minimum essential coverage” for themselves and their dependents, subject to penalty. This has been dubbed the “individual mandate” and touted by PPACA naysayers as “socialized medicine.” The provision also remains the focus of several ongoing lawsuits challenging the constitutionality of PPACA.
Almost immediately after the president signed PPACA, thirteen state attorneys general filed the first of these suits in Florida federal court. This group quickly expanded to include several other states and some independent organizations as co-plaintiffs. The case, decided by an order of the U.S. Northern District of Florida Senior Judge Robert Venison, granted the plaintiff’s motion for summary judgment, declaring the individual mandate unconstitutional and the entire act void for lack of severability. After a motion for clarification of the order was granted and decided by the court, the Department of Justice filed its appeal in the Eleventh Circuit, which, by a split decision, upheld the lower court’s decision that the mandate is unconstitutional. However, the panel disagreed with the lower court finding that the mandate was not severable from the rest of PPACA.
Judges Frank Hall, a conservative Clinton appointee, and Joel Dubina, appointed by Reagan and elevated by George H.W. Bush, concluded that:
[T]he individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. We have not found any generally applicable, judicially enforceable limiting principle that would permit us to uphold the mandate without obliterating the boundaries inherent in the system of enumerated congressional powers.
Judge Stanley Marcus met the decision with scathing dissent. He criticized his colleagues for acting “as a superlegislature, offering ways in which Congress could have legislated more efficaciously or more narrowly.” Using the language carefully crafted by the U.S. Supreme Court in Gonzales v. Raich, Judge Marcus pointed out that the court “‘need not determine whether [the regulated] activities, taken in the aggregate, substantially affect interstate commerce in fact.’” Instead, he argued, the court should only determine whether the law survives rational basis scrutiny.
Numerous other groups have also filed suit against the U.S. Department of Health and Human Services and Kathleen Sebelius in her official capacity as its Secretary, challenging the constitutionality of the individual mandate included within the law. The Fourth Circuit, for instance, recently dismissed a PPACA challenge on grounds unrelated to the substantive issue of the individual mandates’ constitutionality. The case, led by Virginia Attorney General Kenneth T. Cuccinelli, focused on the conflict between the recently passed Virginia Health Care Freedom Act (VHCFA) and the individual mandate. VHCFA serves as a direct response by the Virginia legislature to the individual mandate in PPACA. It states that “no resident of [the] Commonwealth [of Virginia] . . . shall be required to obtain or maintain a policy of individual insurance coverage except as required by a court or the Department of Social Services where an individual is named a party in a judicial or administrative proceeding.” The plaintiff argued that because the individual mandate injures the sovereignty of the state of Virginia, the mandate cannot be imposed because it is unconstitutional.
The decision ultimately rests on an analysis of Virginia’s standing to challenge the mandate. The court concluded that passing a state law that may conflict with a federal law does not give the state automatic standing to challenge the federal law. “[O]nly when a federal law interferes with a state’s exercise of its sovereign ‘power to create and enforce a legal code’ does it inflict on the state the requisite injury-in-fact.”
The court also posits that it cannot rule on the constitutionality of the mandate until it becomes effective in 2014. The reason for this lies in the fact that the court interprets the mandate to be a tax, something that the Obama administration has both supported and denied. The panel “cited the Tax Anti-Injunction Act, which requires taxpayers to pay a tax and ask for a refund before they can challenge [the tax] in court.” The decision came as a bit of a surprise considering the Fourth Circuit’s markedly conservative reputation.
Inevitably, these suits have caused a Circuit split worthy of Supreme Court review. As time passes, and more challenges crop up, it seems inevitable that the high court review of the mandate will be just what the doctor ordered. Overturning this law could have substantial implications. Many portions of the law, including the individual mandate, are not slated to go into effect until 2014; however, several portions of the law are either currently applicable or in the process becoming so. Many states have already accepted funding and spent resources attempting to prepare for the massive changes to the healthcare system. Certainly, a decision by the court that PPACA is wholly unconstitutional will cause some issues.
So really, the ultimate question is not whether the Supreme Court will decide on the issue of the individual mandate and the constitutionality of PPACA, but when and how? It does not seem like a far-fetched suggestion that the court will have to rule on the individual mandate eventually, though they declined to grant expedited review to the pending appeals in the various Circuit Courts.
Many have forecasted the camps in the Supreme Court to vote according to expectation: Justices Sotomayor, Breyer, and Ginsberg voting to uphold the law and Justices Scalia, Alito, Thomas, and Chief Justice Roberts voting to strike it down. Up to this point, former Solicitor General Elena Kagan has firmly denied demands that she recuse herself from PPACA-related cases. When the Department of Justice requested expedited review in the Florida case, Kagan was present. This suggests that she will likely be the fourth vote to uphold the mandate, making this a shoe in for a 5-4 decision. If that is the case, then it seems like the giant question marks rests with that infamous swing voter Justice Kennedy.
Halfway through the Supreme Court’s term in 2007, Justice Kennedy maintained a predictable record: he fell on the winning side of 5-4 decisions 38 out of 40 times. Even Justice Kennedy’s colleagues have duly noted the importance of his vote in these split decisions. It appears, given a shift in his voting patterns towards more conservative outcomes, that during the 2008-2009 term Chief Justice Roberts became more skilled at courting Kennedy’s vote. However, the individual mandate poses a special problem for Justice Kennedy as a jurist because it involves two important, yet contradictory, ideas that he holds important. These ideas are “a judicial duty to enforce limits on the federal government, and acceptance of a practical post-New Deal conception of the federal power to regulate a national economy.”
A firm understanding of these competing ideals allows for some strategic planning on the part of those defending the mandate. First, in order to appeal to Justice Kennedy’s acceptance of a broad, post-New Deal commerce clause, it is important to stress that the mandate serves similar purposes as other legislation upheld under this idea. Second, it would be advisable to stress how the mandate functions in a larger national economy.
This distinction remains important because jurists like Kennedy believe that the federal government does not have the power to require individual purchases. Thus, those arguing in support of the law must focus on the need for a more workable health care industry in the country and the benefits that will provide to the national economy. Finally, and what some deem to be the most important point to focus on when persuading Justice Kennedy, is developing real life examples of how the mandate will be effective “within judicially enforceable limits.” The Court, as a whole, will likely be concerned with this third point, but this is especially important to Justice Kennedy and will probably be the reason why he ends up on one side or the other of the 5-4 vote.
While it remains undecided whether the Supreme Court will take up the issue of the individual mandate, it will certainly be a battle, and probably an uphill one at that, for the government and those in support of PPACA and the mandate. While groups continue to litigate this issue, the average American must sit and wait to hear how this behemoth change in health care will unfold. Hopefully, as the law continues to grapple with this issue, we can all keep in mind the sweeping impact of an expensive health care system and an outstanding lack of insurance that has truly impacted so many lives in this country.
 26 U.S.C. § 5000A (2006).
 Julie Hirschfeld Davis, Bachmann Targets Obama on Constitution at DeMint-Sponsored Candidate Forum, Bloomberg.com, Sept. 6, 2011, http://www.bloomberg.com/news/2011-09-06/bachmann-targets-obama-on-constitution-at-demint-sponsored-forum.html (quoting Republican presidential candidate Michele Bachmann) (last visited Oct. 30, 2011).
 For a list of major court cases involving PPACA and the individual mandate, see Richard Cauchi, State Legislation and Actions Challenging Certain Health Reforms, 2011, Nat’l Conference of State Legislatures, http://www.ncsl.org/?tabid=18906 (last visited Oct. 30, 2011).
 Florida v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1307 (N. Dist. Fl. 2011).
 Id. at 1309.
 Florida v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1263 (11th Cir. 2011).
 Id. at 1327.
 Id. at 1328.
 Id. at 1344 ( Marcus, J., dissenting in part).
 Id. (quoting Gonzales v. Raich, 545 U.S. 1, 22 (2005)).
 See Cauchi, supra note 3.
 Virginia v. Sebelius, No. 11-1057, 2011 U.S. App. LEXIS 18632, at *26–27 (4th Cir. Sept. 8, 2011).
 Va. Code Ann. § 38.2-3430.1:1 (West 2010).
 Sebelius, 2011 U.S. App. LEXIS 18632, at *11.
 Id. at *28.
 Id. at *19–20 (quoting Snapp v. Puerto Rico, 458 U.S. 592, 601 (1982)).
 Jonathan H. Adler, Administration Now Says Individual Mandate is a Tax, The Volokh Conspiracy, Jul.,18, 2010, http://volokh.com/2010/07/18/administration-now-says-individual-mandate-is-a-tax/ (last visited Oct. 30, 2011).
 Jennifer Haberkorn, Health Care Law Cases Rejected by4th Circuit Court of Appeals, Politico, Sept. 8, 2011, http://www.politico.com/news/stories/0911/62992.html (last visited Oct. 30, 2011).
 Trevi Troy, No Standing in Richmond, Nat’l Rev. Online, Sept. 8, 2011,http://www.nationalreview.com/corner/276649/no-standing-richmond-tevi-troy (last visited Oct. 30, 2011).
 Mark Cherry, Health Reform: Oscar-bait or Grease 3? Grab the Popcorn and Watch, HealthLeadersInterStudy.com , Sept. 9, 2011, http://hl-isy.com/Healthcare-Reform-Blog/September-2011/Health-Reform-Law-090911 (last visited Oct. 30, 2011).
 Adam Winkler, With Kagan on Board Supreme Court Turns Back Healthcare Challenge, Huffington post, Apr. 25, 2011, http://www.huffingtonpost.com/adam-winkler/with-kagan-on-board-supre_b_853317.html (last visited Oct. 30, 2011).
 Robert Barnes, Justice Kennedy: The Highly Influential Man in the Middle, The Wash. Post, May 13, 2007 available at http://www.washingtonpost.com/wp-dyn/content/article/2007/05/12/AR2007051201586.html (last visited Oct. 30, 2011).
 Jonathan H. Adler, Justice Kennedy, the Individual Mandate, and the Broccoli Question, The Volokh Conspiracy, Mar. 29, 2011, http://volokh.com/2011/03/29/justice-kennedy-the-individual-mandate-and-the-broccoli-question/ (last visited Oct. 30, 2011).
 Frank J. Colucci, Inside the Mind of Justice Kennedy on the Mandates’ Constitutionality, Basemenroselaw.com, Mar. 30, 2011, http://basmanroselaw.blogspot.com/2011/03/inside-mind-of-justice-kennedy-on.html (last visited Oct. 30, 2011).