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Circuit breaker: Individual mandate heading to Supreme Court

NEW GLOUCESTER, ME – Last month’s decision by a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in Atlanta that struck down the individual insurance mandate has finally put the Patient Protection and Affordable Care Act on course for what has been inevitable from the beginning: a date with the justices of the United States Supreme Court.

In their 2-1 split decision, the justices ruled in opposition to their judicial brethren at the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, which in June upheld the law, by the same 2-1 vote. With two circuit courts now in opposition on the law’s constitutionality, the last and final stop on PPACA’s countrywide tour of the U.S. court system is now in sight.

In making their ruling for the Eleventh Circuit, Judges Joel Dubina and Frank Hull said in a their majority opinion that “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.”

Whether you agree or disagree with this opinion, I think we can all agree they got one thing right: health insurance is expensive.

Proponents of the law could find some reason to cheer the Eleventh Circuit’s decision, in that it largely overturned the January ruling by Florida’s District Court Judge Roger Vinson, who essentially threw the whole law onto the scrap heap. In their ruling, Judges Dubina and Hall noted that it was possible to separate the individual insurance mandate from the rest of the law.

So now the focus will be where it was assumed it would end up all along – the law’s requirement that all citizens buy health insurance. People who like to prognosticate on how the Supreme Court will decide on this case based on whether a judge was appointed by a Republican or Democratic president need only look at this latest judgment to see their folly. Judge Frank Hull was a late 1990s nominee to the bench by President Bill Clinton.

Make no mistake, the case is nuanced and will test the Commerce Clause in a way that it never has been before. That means from a strictly legal sense, this one is hard to call.

President Barak Obama has trotted out the same optimism with each setback saying that the individual mandate will ultimately stand the constitutionality test of the Commerce Clause, though he may not be in any hurry to find out.

Speculation persists that with the upcoming election, the Obama team may look for ways to delay having the high court hear the case until after the 2012 elections.

"If the Supreme Court rules against it, it's going to be hard for the American people not to understand that maybe this guy has gone too far," said Stephen Presser, a professor of legal history at Northwestern University in a story published in "All things considered, he'll probably try to delay until after the election."

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