The Department of Justice is expected to appeal. | REUTERS Court says mandate unconstitutional

The 11th Circuit Court of Appeals on Friday ruled that the health care reform law’s requirement that nearly all Americans buy insurance is unconstitutional, a striking blow to the legislation that increases the odds the Supreme Court will choose to review the law.

The suit was brought by 26 states — nearly all led by Republican governors and attorneys general — and the National Federation of Independent Business. The Department of Justice is expected to appeal.


The 2-1 ruling marks the first time a judge appointed by a Democrat has voted to strike down the mandate. Judge Frank Hull, who was nominated by former President Bill Clinton, joined Chief Judge Joel Dubina, who was appointed by George H.W. Bush, to strike down the mandate.

Judge Stanley Marcus, in a dissenting opinion, said the mandate is constitutional. He was also appointed by Clinton.

The panel partially upheld a ruling issued in January by Judge Roger Vinson, who struck down the entire health reform law. However, the 11th Circuit said that the rest of the legislation can stand even if the mandate is unconstitutional.

The panel also said that the law’s expansion of Medicaid is constitutional, ruling against the states.

The Department of Justice won’t say yet whether it will appeal to the Supreme Court or ask the entire 11th Circuit to review the decision.

The majority of the panel said they couldn’t uphold the mandate because there would be no limit to Congress’s powers if they did. Opponents of the law have frequently argued that if Congress can require people to buy insurance, they can force people to do anything else, such as buy broccoli or a gym membership for their health benefits. Vinson cited this broccoli argument in his sweeping ruling striking down the entire law.

“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,” Dubina and Hull wrote in an expansive, 200-page ruling. “‘Uniqueness’ is not a constitutional principle in any antecedent Supreme Court decision.”

The federal government argued that the law regulates only how people obtain health care — something all Americans will need at some point in their lives. They say the uniqueness of the market makes health care different than broccoli or gym purchases.

“People are seeking this good already,” Neal Katyal, the acting solicitor general, said during oral arguments. “It’s about the failure to pay, not the failure to buy.”

During oral arguments in Atlanta in June, the panel spent a significant amount of time discussing whether the mandate is “severable” from the rest of the law. Hull in particular asked the federal government three times where the line should be.

The ruling comes six weeks after the 6th Circuit Court of Appeals upheld the mandate in a similar suit, giving the health law a 1-1 record at the circuit level. The 4th Circuit Court of Appeals, which heard two related cases in May, has not issued its rulings yet.

The White House downplayed the ruling, pointing to the 6th Circuit and lower courts that have upheld the law.

“There has been no shortage of court cases regarding the constitutionality of the Affordable Care Act. Before today, four courts, including the 6th Circuit Court of Appeals, examined the health reform law and found it constitutional,” Stephanie Cutter, a deputy senior adviser, wrote in a White House blog post. “Today’s ruling is one of many decisions on the Affordable Care Act that we will see in the weeks and months ahead. In the end, we are confident the act will ultimately be upheld as constitutional.”

The split rulings make the suit a strong contender to be taken up by the Supreme Court in the fall term.

The Thomas More Law Center, which lost the 6th Circuit ruling, has already filed its appeal.

In this case, the federal government will have 90 days to appeal to the Supreme Court — in a process called certiorari — or ask the entire 11th Circuit to review the ruling.

“I can’t think of any time a federal law was struck down — let alone a federal law of this scope — that the United States sought ‘certiorari’ and the cert was denied,” said Brad Joondeph, a University of Santa Clara law professor who follows the health law cases at acalitigationblog.blogspot.com.

Florida Attorney General Pam Bondi, who inherited the lawsuit from her predecessor, Bill McCollum, praised the ruling.

“Today we have prevailed in preventing Congress from infringing on the individual liberty protected by the U.S. Constitution,” she said in a statement.

Republican presidential candidates, who argue the mandate is unconstitutional, are already praising the ruling.

Rep. Michele Bachmann told reporters in Iowa that she had "helped to make that argument about the unconstitutionality of the individual mandate."

"Effectively giving a national voice to those arguments — the court has listened to those arguments," Bachmann said.

Marcus, who wrote the dissent, railed against the decision, calling it “wooden, formalistic and myopic.”

He said that Congress has shown time and again that it has power over the national health care markets, especially in its ability to set prices under Medicare, its regulatory authority over insurers and drugmakers and its ability to issue rules that cut across both how care is delivered and covered.

“Both the congressional intent to link the two and the empirical relation between the purchase of health insurance and the consumption of health care services are clear,” Marcus wrote.

The ruling is likely to worry not only supporters of the health law but also the insurance industry. The panel said all of the rest of the law — including its ban on insurers denying patients because of pre-existing conditions — can stand.

Insurers — and the federal government — have argued that the two must be tied together.

Insurers in particular have said that premiums would have to increase if they were required to accept everyone without the mandate.

“Throughout the health care reform debate there was broad agreement that enacting guarantee issue and community rating would cause significant disruption and skyrocketing costs unless all Americans have coverage,” said Robert Zirkelbach, a spokesman for America’s Health Insurance Plans. “States that have implemented these laws without covering everyone have seen a rise in insurance premiums, a reduction of individual insurance enrollment and no significant decrease in the number of uninsured."

Matt DoBias contributed to this report.