September 16, 2011
Fueling uncertainty surrounding the new health care reform law, three federal appellate courts have now ruled three different ways on the constitutionality of PPACA. The Sixth Circuit found the law's individual mandate constitutional, the Eleventh Circuit ruled that the mandate was unconstitutional but that the entire law was not invalidated, and most recently the Fourth Circuit ruled that it did not have jurisdiction to hear the case and that the Commonwealth of Virginia could not properly bring the case. The circuit split significantly raises the likelihood that the U.S. Supreme Court will consider the issue this coming year, with a decision before July 2012. To further that end, HR Policy filed an amicus brief with the Supreme Court urging it to hear the case as soon as possible so that employers can operate in an environment of greater legal certainty. The Supreme Court will announce if it will hear the case during the upcoming term no earlier than October 31, 2011, and it is an even chance that if the Court takes the case this term it will find PPACA’s individual mandate unconstitutional. Meanwhile, a lower federal court judge in Pennsylvania—Christopher Conner—just found that the individual mandate is unconstitutional but the judge also ruled that PPACA’s guaranteed issue and pre-existing condition provisions must be invalidated because of the individual mandate's constitutional defects. Judge Conner is the first judge to tie the guarantee issue and pre-existing condition provision to the individual mandate.