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WASHINGTON, D.C. -- The federal government on Sept. 28 filed a petition for writ of certiorari with the U.S. Supreme Court, saying the 11th Circuit U.S. Court of Appeals erred in affirming that the individual mandate contained in the Patient Protection and Affordable Care Act (PPACA) is unconstitutional. The government also filed its response in a separate case before the Supreme Court challenging the PPACA, asking the court to hold review of the case until a decision is reached in the case coming from 11th Circuit (United States Department of Health and Human Services, et al. v. States of Florida, et al., No. N/A, U.S. Sup.; Thomas More Law Center, et al. v. Barack Hussein Obama, et al., No. 11-117, U.S. Sup.).
The government asked the Supreme Court to review a split 11th Circuit panel decision in States of Florida, et al. v. United States Department of Health and Human Services, in which the court affirmed the U.S. District Court for the Northern District of Florida's grant of summary judgment to 36 states that challenged the constitutionality of the law. The federal government appealed.
In Florida, a split 11th Circuit panel affirmed a finding that the individual mandate in the PPACA is unconstitutional but reversed a holding that the provision is not severable from the rest of the act. The court also affirmed the lower court's finding that the act's expansion of Medicaid is constitutional.
The states also petitioned the Supreme Court for review of the case Sept. 28, saying the 11th Circuit did not go far enough in holding the individual mandate to be unconstitutional.
In its petition, the government says review should be granted because Congress acted well within its authority under the commerce clause of the U.S. Constitution in enacting the individual mandate because the mandate "directly addresses the consequences of economic conduct that distorts the interstate markets for health care and health insurance."
"Congress's enactment of the minimum coverage provision thus rests upon direct, tangible, and well-documented economic effects on interstate commerce, not effects 'so indirect and remote that to embrace them . . . would effectually obliterate the distinction between what is national and what is local'," the government says in citing United States v. Lopez (514 U.S. 549 ).
In a separate filing, the government asked the court to withhold review in Thomas More Law Center, et al. v. Barack H. Obama (No. 11-117, U.S. Sup.) pending the outcome of the decision in the Florida case. In Thomas More, the U.S. District Court for the Eastern District of Michigan dismissed the case, and a split Sixth Circuit U.S. Court of Appeals affirmed, ruling that the mandate is a valid exercise of Congress' power under the commerce clause of the U.S. Constitution. Challengers petitioned the Supreme Court on July 26.
In its response, the government says it does not appear to be necessary to grant review in Thomas More given the pending petition in Florida. The petitioners in Thomas More would be free to file an amicus curiae brief on the relevant issues in the Florida case, the government says.
The court could grant both petitions and consolidate the cases, but that would complicate the briefing and presentation of the arguments to the court without a sufficient corresponding benefit, the government says.
However, should the court grant review of both cases, the government asked for the cases to be consolidated and the parties directed to address the applicability of the Anti-Injunction Act.
[Editor's Note: Full coverage will be in the Oct. 5 issue of Mealey's Managed Care Liability Report. In the meantime, the petition and response are available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Petition. Document #31-111005-013B. Response. Document #31-111005-014B. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
For more information, email editor Cheryl Keely at firstname.lastname@example.org.
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