U.S. urges the Court to hold the petition in TMLC v. Obama

The Solicitor General has filed the United States's response to the plaintiffs' cert petition in Thomas More Law Center v. Obama (No. 11-117), and it is urging the Court to hold the petition pending the Court's resolution of the government's petition for certiorari in HHS v. Florida. This position was entirely expected in light of the government's filing of its cert petition earlier today.

You can access the government's response here.

And Lyle Denniston has updated coverage of the government's response brief at SCOTUSblog, which you can find here.

BREAKING: U.S. files petition for certiorari in Florida v. HHS

Details to follow shortly.

UPDATE: You can access here the petition for a writ of certiorari just filed by the Solicitor General in HHS v. Florida. And you can access the appendix to that petition here. The docket number is 11-398.

The end game now appears to be fast approaching: a cert grant by late October, oral argument likely in February or March, and a decision by June. Actually, now that I think about it, the Court may want both sides to file responses to the three cert petitions filed today (and just hold Thomas More in the mean time). As both sides are seeking certiorari, I am not sure how much the responses matter here. (And perhaps the parties will waive their rights to respond, thus expediting the process.) But the normal course is for the parties to file their responses 30 days after the petition, meaning October 27. If that is what happens here, the Court would likely issue the order granting cert in late November. And that would slate the argument most likely (though it is up to the Court's discretion) for March.

UPDATE 2: The United States's petition asks the Court to address two questions: (1) "Whether Congress had the power under Article I of the Constitution to enact the minimum coverage provision," and (2) "whether the suit brought by respondents to challenge the minimum coverage provision of the [ACA] is barred by the Anti-Injunction Act, 26 U.S.C. 7421(a)."

In the petition, the government continues to express its view (as it has now for a while, though certainly not from the beginning of this litigation) that the AIA does not deprive the Court of jurisdiction. But the SG acknowledges a circuit split on the question and thus urges the Court to address the issue.

UPDATE 3: You can find Lyle Denniston's (SCOTUSblog) coverage of the United States's petition here. You can find Randy Barnett's take on the United States's petition here at Volokh Conspiracy, and Randy's commentary from earlier today on the petition that he co-authored on behalf of the private plaintiffs (the NFIB, Brown, and Ahlburg) here.

Nothing yet from the SG

A quick check of the Supreme Court docket for Thomas More indicates no extension has been granted -- at least not yet. And this page on the DOJ's web site, dedicated to the defense of the ACA, has nothing on any filing today by the federal government.

Could the petitions filed by the two sets of plaintiffs in Florida v. HHS change the government's calculus, at least slightly? Might the Solicitor General want to present a comprehensive response to all three of the separate cert petitions, instead of responding to each in turn, and present its own cert petition simultaneously? Perhaps the government now has good reason to ask for thirty more days. That would still keep the case well within the 2011 Term -- though it would likely push argument to March or April, making it a  tighter time frame for the Court to write its opinions.

 We shall soon see.

States file cert petition in Florida v. HHS

The other plaintiffs in Florida v. HHS -- the twenty-six participating states -- have now filed their own peititon for a writ of certiorari at the Supreme Court. Here are the three questions presented by the petition, as stated on page i:

1. Does Congress exceed its enumerated powers and violate basic principles of federalism when  it coerces States into accepting onerous conditions that  it  could not impose  directly by threatening to withhold all  federal  funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending  power that this Court  recognized in  South Dakota v. Dole, 483 U.S. 203 (1987), no longer apply?

2. May Congress treat States no differently from any other employer when imposing invasive mandates as to the manner in which they provide their own employees with insurance coverage, as suggested by Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), or has Garcia's approach been overtaken by subsequent cases in which this Court has explicitly recognized judicially enforceable limits on Congress‘s power to interfere with state sovereignty? 

3. Does the Affordable Care Act‘s mandate that virtually every individual obtain health insurance exceed Congress‘s enumerated powers and, if so, to what extent  (if any) can  the mandate be severed from the remainder of the Act?

Pretty interesting that the states are actually seeking a reconsideration of Garcia in question 2--an issue that has not really been in play (or at least the topic of much discussion) to this point. This might reflect their conclusion that a straight-up coercion argument might be a pretty difficult sell. Some give in Garcia, though, might permit a  conclusion that the ACA's Medicaid amendments violate the principles of state sovereignty, even if they do not amount to "compulsion." In their petition, the Garcia issue is only raised with respect to the employer mandates (and their application to the states). So perhaps there is no connection. But it sure seems that the abandonment of Garcia -- and a reinvigoration of the National League of Cities principle that states must be treated differently for purposes of imposing federal regulation -- might be a way to invalidate the Medicaid provisions without finding them "coercive" per se. (Or perhaps this is just an instance of making sure you ask for more than what you are likely to get, to make what you really want appear less dramatic by comparison.)

Maybe the plaintiffs sensed that the United States would be filing its petition today, and wanted to seize the initiative? Just a guess.

You can access the states' petition here.

Non-state plaintiffs file petition for certiorari in Florida v. HHS

The non-state plaintiffs in Florida v. HHS -- the National Federation for Independent Businesses and two individuals, Kaj Ahlburg and Mary Brown -- have filed a petition for a writ of certiorari at the Supreme Court. The question presented in the petition is whether the individual mandate is severable. Specifically, here how the petition phrases the QP:

Congress effected a sweeping and comprehensive restructuring of the Nation’s health-insurance markets in the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010), as amended by the Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 109 (2010) (collectively, the “ACA” or “Act”). But the Eleventh Circuit and the Sixth Circuit now have issued directly conflicting final judgments about the facial constitutionality of the ACA’s mandate that virtually every individual American must obtain health insurance. 26 U.S.C. § 5000A. Moreover, despite the fact that the mandate is a “requirement” that Congress itself deemed “essential” to the Act’s new insurance regulations, 42 U.S.C. § 18091(a)(2)(I), the Eleventh Circuit held that the mandate is severable from the remainder of
the Act. 

The question presented is whether the ACA must be invalidated in its entirety because it is nonseverable from the individual mandate that exceeds Congress’ limited and enumerated powers under the Constitution.

UPDATE: You can access the cert petition here.

UPDATE 2: The Supreme Court docket number for NFIB v. Sebelius is 11-393. And Lyle Denniston of SCOTUSblog has this report on the NFIB's petition.

Lots of chatter

Much has been written in the last few days about the administration's decision not to seek en banc review at the Eleventh Circuit, and what that might signal in terms of the administration's thinking. Here is a health sampling.

* Dahlia Lithwick has this piece at Slate.

* Jennifer Haberkorn has this article at Politico.

* Ezra Klein has this post at the Washington Post's Wonkblog.

* Rick Hasen has this post at his Election Law Blog.

* Orin Kerr weighs in here at the Volokh Conspiracy.

* Peter Suderman has this piece at Reason.

* And Tom Goldstein has this piece at SCOTUSblog.

Also worth noting is Randy Barnett's reflections, posted here at the Volokh Conspiracy, on the oral argument before the D.C. Circuit in Seven-Sky.

Tomorrow the government responds

Unless the Solicitor General seeks--and the Supreme Court grants--a last-minute extension, the federal government will be submitting its response to the petition for certiorari in Thomas More Law Center v. Obama by 5:00 p.m. EDT tomorrow evening. And that document should reveal a great deal about the likely timing of the Court's decision on the constitutionality of the ACA (or the question's justiciability). If the government concedes that certiorari is warranted, the Court could grant the petition by the end of October, scheduling the argument for roughly February. If the government asks the Court to wait for Florida v. HHS, the SG would likely indicate roughly when it plans to file its petition for certiorari. (Who knows -- maybe the government sought the extension for its response in Thomas More so it could file both briefs on the same day, tomorrow.) In all events, much should be clearer by this time tomorrow.

No petition for en banc review in Florida v. HHS

The Department of Justice has decided not to seek en banc review of the Eleventh Circuit's decision in Florida v. HHS.

(UPDATE: Here is a news story from Thomson Reuters confirming.)

Thus, the next big date (at least for the time being) is Wednesday. That is when the government's response is due at the Supreme Court in Thomas More Law Center v. Obama. Again, the administration potentially has several options before it. But the two most likely are to ask the Court (a) to hold the petition in Thomas More pending a forthcoming cert petition in Florida v. HHS, or (b) to agree with the petitioners that, in light of the clear split between the Sixth and Eleventh Circuit decisions (not to mention between both of them and the Fourth Circuit on the Anti-Injunction Act issue), certiorari should be granted.

Nothing at the Eleventh Circuit yet

A quick check of the PACER docket for Florida v. HHS reveals no petition for rehearing en banc yet filed at the Eleventh Circuit. One might still be filed; indeed, one may already have been filed but simply is not yet so noted on PACER. But as of 4:51 EDT, no evidence of an en banc petition.  

An early report on the Seven-Sky argument

Ariane DeVogue of ABC News offers this report. Most interesting is this sentence:

Kavanaugh asked a long series of questions on whether a federal law, the Anti-Injunction Act, prevented challenges to the mandate from coming to court until the penalty  actually went into effect in 2014.

I will pass along more reports as I come across them.

Oral argument tomorrow in Seven-Sky v. Holder

Tomorrow, the D.C. Circuit becomes the fourth court of appeals (after the Fourth, Eleventh, and Sixth Circuits) to hear a case raising a constitutional challenge to the ACA. (More precisely, it is the fourth to hear such a case on the actual merits of the challenge.) The panel of judges hearing the case is the most august to date--Circuit Judges Laurence Silberman, Harry Edwards, and Brett Kavanaugh. Given the timing, it seems somewhat unlikely that this will be the case on which the Supreme Court grants certiorari. But there is no doubt that the justices will be interested in what these three judges have to say on the matter.

Again, each side will have 40 minutes for argument. And the order of the issues to be addressed is as follows (per the court's order of last week):

1. Commerce Clause
2. Taxing Clause
3. Anti-Injunction Act

Still September 28

As of this morning, the Supreme Court's docket for Thomas More Law Center v. Obama still indicates that the United States's response to the plaintiffs' petition for a writ of certiorari is due a week from tomorrow. The deadline for the United States to petition the Eleventh Circuit for en banc review of Florida v. HHS is also fast approaching--by my calculation, the 45-day window closes on Monday, September 26. Thus, barring further extensions, we should know more about DOJ's strategy very soon.

Hearing set in Association of American Physicians & Surgeons v. Sebelius

You might recall that this is the case before the District Court for the District of Columbia. It raises a host of claims that are not being litigated in any of the other lawsuits. Specifically, the plaintiffs are asking the court to do the following (taken from their second amended complaint):

(a) Vacate the Social Security Program Operations Manual System (“POMS”) on (a) Waiver of Hospital Insurance Entitlement by Monthly Beneficiary, POMS HI 00801.002, (b) Withdrawal Considerations, POMS HI 00801.034, and (c) Withdrawal Considerations When Hospital Insurance is Involved, POMS GN 00206.020, (i) as promulgated without the required notice-and-comment rulemaking, and (ii) for mandating (without authority) that AAPS and ANH-USA members and their patients participate in Medicare Part A as a condition to receiving Social Security benefits; 

(b) Enjoin the re-promulgation of regulations similar to POMS HI 00801.002, POMS HI 00801.034, and POMS GN 00206.020 as ultra vires;  

(c) Enjoin and declare unlawful the Patient Protection & Affordable Care Act (“PPACA”) mandate that businesses with 50 or more fulltime employees and individuals purchase health insurance or pay penalties (collectively, “PPACA insurance mandates”) as outside the authority of Congress to enact and the federal government to enforce; 

(d) Enjoin and declare unlawful the promulgation and enforcement of federal standards for health insurance as outside the authority of Congress to enact and the federal government to enforce; 

(e) Enjoin and declare unlawful the enforcement of PPACA in its entirety because it lacks a severability clause and cannot be funded without the insurance mandates on businesses of 50 or more fulltime employees and individuals; 

(f) Vacate the provisions of the Center for Medicare and Medicaid Services (“CMS”) Manual System and the accompanying Charge Request 6417 and 6421 (collectively, “CR6417/6421”) and Department of Health & Human Services (“HHS”) Interim Final Rule with Comment Period (“IFC”), 75 Fed. Reg. 24,437 (2010), that purport to require physicians and other eligible professionals to have an HHS-approved enrollment or opt-out record in the Provider Enrollment, Chain and Ownership System (“PECOS”) in order to refer under Medicare Part B, as ultra vires HHS authority under Medicare and adopted without APA’s required notice and comment; 

(g) Permanently and preliminarily enjoin HHS from requiring non-Medicare providers to enroll with Medicare, to appear in PECOS, or to obtain a National Provider Identifier (“NPI”) absent another criterion – e.g., engaging in HIPAA transactions or eprescribing – that independently requires an NPI; 

(h) Declare that nothing in Medicare or any other provision of law requires physicians to opt-out pursuant to 42 U.S.C. §1395(b)’s statutory safe harbor in order lawfully to treat Medicare beneficiaries for payment outside Medicare; and 

(i) Order Defendants Sebelius and Astrue to submit an accounting on the solvency of Medicare and Social Security, respectively, to this Court.

Most of these are statutory claims, and some of them are procedural statutory claims (arising under the Administrative Procedures Act) concerning the manner in which the regulations were adopted. But claims (c), (d), and (e) are clearly constitutional.

Here are the relevant documents:

* The plaintiffs' second amended complaint is here.

* The United States's motion to dismiss is here.

* The plaintiffs' memorandum in opposition to the motion to dismiss is here.

* The United States's reply brief is here.

The District Court has set the hearing on hearing on the United States's motion to dismiss for October 20 at 10:00 a.m. (in Courtroom 3) before Judge Amy Berman Jackson.

Panel announced in Kinder v. Geithner

The United States Court of Appeals for the Eighth Circuit has announced the three-judge panel that will hear Kinder v. Geithner, the case coming from the Eastern District of Missouri. (The district court dismissed the plaintiffs' complaint on standing grounds, but the parties have also briefed the merits of the constitutionality of the individual mandate in their papers filed with the Eighth Circuit.) Here is the docket entry:

SET FOR ARGUMENT - CASE PLACED ON CALENDAR - for Argument in St. Paul on Thursday, 10/20/2011 To be heard before Judges Kermit E. Bye, Lavenski R. Smith, Steven M. Colloton in Division II . The courtroom deputy will be Lisa M. Tobias. 

Judge Bye is a Clinton appointee, and Judges Smith and Colloton are George W. Bush appointees.

Supplemental briefing in Seven-Sky v. Holder

Some important goings-on in Seven-Sky v. Holder, the case to be argued a week from today at the D.C. Circuit, that until a few minutes ago I had completely missed.

First, on August 31, the D.C. Circuit issued this order instructing the parties to file supplemental briefs addressing the following two questions:

(1)  Is the “penalty” referred to in 26 U.S.C. § 5000A punitive or non-punitive? Cf. Hudson v. United States, 522 U.S. 93 (1997); Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).  If the penalty is non-punitive, may the Federal Government impose a non-punitive civil penalty under the authority of the Constitution’s tax power if the penalty is not expressly labeled a “tax” in the statute?  Cf. License Tax Cases, 72 U.S. 462, 471, 473 (1867). 

(2)  How is the constitutional analysis under the Taxation Clause affected, if at all, by the fact that the tax penalty at issue here does not purport only to encourage or discourage conduct but is accompanied by a specific legal mandate:  “An applicable individual shall for each month beginning after 2013 ensure that the individual . . . is covered under minimum essential coverage for such month.”  26 U.S.C. § 5000A(a)?

Second, on Monday, the parties filed the called-for supplemental briefs:

* You can access the plaintiff-appellants' brief here.

* You can access the United States's brief here.

Third, the D.C. Circuit has subsequently issued two other orders. This order provides that each side has 40 minutes for argument (a portion of which they can allocate to amici if they so desire. And this order states that the parties are to address the questions at argument in the following order:

1. Commerce Clause
2. Taxing Clause
3. Anti-Injunction Act

Clarifying the AIA question

I have had a great deal of off-line correspondence with several readers about the applicability of the Anti Injunction Act to all of the lawsuits challenging the minimum essential coverage provision. Thanks to everyone who has written; it has been extremely helpful.

I remain convinced, at least at this point, that the AIA poses a very serious threat to the Supreme Court's hearing of any challenge to the individual mandate. That said, I think I have a clearer idea of the issues that will determine the resolution of that issue.

* First, and perhaps most important, there is a very real dispute as to whether one should see the mandate (codified at 26 USC 5000A(a)) as a stand-alone legal obligation, or instead merely as part of a provision that, taken as a whole, gives those persons covered by the provision a choice between acquiring health coverage and paying a penalty.

* Second, this matters greatly, for if 5000A(a) is truly a stand-alone legal obligation, it obviously is not a "tax" within the meaning of the Anti-Injunction Act (or the General Welfare Clause). It is a simply command, an "economic mandate" in the words of Randy Barnett.

* Conversely, if the best way to see 5000A is in its entirety, giving "applicable individual[s]" a choice between either (a) buying insurance, or (b) remitting the applicable exaction on their tax return, then the provision might well be a "tax" within the meaning of the AIA, consistent with the reasoning of Judge Motz's opinion in Liberty University.

There is much more to this issue. I think this question functions as a basic threshold, over which all other analysis of the AIA question must cross.

Revisiting the AIA question in Goudy-Bachman

In today's ruling, District Judge Christopher Conner chose not to revisit any of the jurisdictional judgments he made back in January, when he denied the United States's motion to dismiss. In light of the Fourth Circuit's decision in Liberty University, it is worth revisiting how Judge Conner dealt with the Anti-Injunction Act issue--an issue that is now becoming a bit more of a focus.

First, it is worth noting that, in its motion to dismiss, the government argued that the plaintiffs' challenge to the individual mandate was barred by the AIA (a position that it has since abandoned). Second, Judge Conner rejected the AIA argument on two grounds:

1. He concluded that the mandate itself is not a tax, as all it does is command individuals to purchase health insurance. This seems, well, wrong. There actually is no mandate as such. Individuals actually are not required to acquire health insurance. If they so choose, they can pay the applicable penalty instead. The penalty is part of the mandate. To view the mandate for these purposes as divorced from the penalty strikes me as a bit strange.

UPDATE: In light of several thoughtful comments I have received today, I would like to retract part of what I have asserted here. The essence of my point was, and remains, that I am not sure it makes any sense--for purposes of evaluating whether a suit to enjoin the individual mandate is barred by the AIA--to view 1501(a) (which imposes the legal liability to acquire health coverage) independently of 1501(b), which imposes the exaction for the failure to fulfill that obligation.

2. Alternatively, he concluded that the exaction imposed by 1501 is a "penalty," and not a tax, and the AIA only applies to "tax[es]." Again, the term "any tax" in the AIA may well not include the exaction imposed by 1501. But it cannot simply be because that exaction is a "penalty." Indeed, as Judge Motz's opinion in Liberty University demonstrates, the AIA plainly applies to many "penalties" imposed by the Internal Revenue Code. Moreover, Judge Conner relies heavily on reasoning (used by other courts in the ACA litigation) as to why the exaction imposed by 1501 is not a "tax" for purposes of determining whether it falls within Congress's taxing power. But again, as the Bailey cases illustrate, the definition of a "tax" under the AIA is broader than that under the General Welfare Clause (which is fairly broad to begin with).

In short, the analysis in Goudy-Bachman as to why the AIA does not bar jurisdiction appears to be lacking. That is not to say that AIA does pose such a bar. Rather, the point is that the courts coming out this way have not really matched the analysis of Liberty University.

A quick summary of Goudy-Bachman

Here is a short list of highlights from Judge Conner's decision declaring portions of the ACA unconstitutional:

* The action-inaction distinction is unhelpful, too reminiscent of prior distinctions under the Commerce Clause (direct-indirect, manufacturing-commerce) that the Court has ultimately abandoned.

* The individual mandate is anticipatory regulation. Whether the relevant market is the health care service market, as the government maintains, or the health insurance market, as the challengers maintain, ACA 1501 "seeks to regulate conduct prior to an uninsured’s entrance into either market." (p. 33 n.12)

* All prior exercises of the commerce power upheld by the Supreme Court have involved the regulation of persons who are "already engaged in commerce [and] active in the relevant interstate market." (pp. 33-34)

* The regulated individuals in Wickard and Raich, unlike those reached by the minimum coverage provision, had engaged in the "affirmative conduct of . . . obtaining or producing commodities with an interstate market." (p. 36)

* "Unless and until that point, an individual’s status as uninsured or “self insured”—whichever nomenclature one chooses to apply—has no effect whatsoever on interstate commerce." (pp. 37-38)

* Although the health care services market is unique, finding this to be a limiting principle, that would cabin what would otherwise constitute an almost limitless scope to the commerce power, has no basis in precedent, and the court is bound in this respect by stare decisis.

* The minimum coverage requirement, though clearly linked to the ACA's guarantee-issue and community-rating provisions, is not essential to the Act's broader regulation of the health insurance (or health care services) market. "The individual mandate is clearly not essential to [the ban on pre-existing condition exclusions for insureds under 19 years old], nor the Act’s other insurance reforms: its creation of health benefits exchanges, the imposition of penalties on employers who do not offer coverage or adequate
coverage to their employees, or the Medicaid expansion." (p. 43)

* The guarantee-issue and ban on preexisting condition exclusions are inseverable from the minimum coverage provision, and thus must also be declared void. "Congress clearly linked the individual mandate to the
guaranteed issue and preexisting conditions reform provisions because it is a partial funding source for these provisions.  Given the current structure of the Act, and with certain deference to the government’s perspective of Congress’s intent, the fate of the guaranteed issue reforms rises and falls with the minimum coverage provision.  Accordingly, the court finds that the minimum coverage provision, guaranteed issue, and preexisting condition provisions must be severed from the Act." (pp. 48-49)

Hence, the minimum essential coverage provision is unconstitutional. And because they cannot be severed from 1501, the provisions mandating community rating and banning exclusions based on preexisting conditions are also void.

How the Anti-Injunction Act could scuttle everything

I think the possibility remains somewhat remote. But the more I think about Judge Motz's analysis--and the arguments the United States was once making in these cases, way back in the summer of 2010--the more I think it is a distinct possibility that the question of the individual mandate's constitutionality might not be decided by the Supreme Court any time soon. Here is a brief sketch of my thoughts:

* Judge Motz's opinion in Liberty University is fairly persuasive. As is the amicus brief filed by former IRS Commissioners Mortimer Caplan and Sheldon Cohen in Seven-Sky v. Holder (available here). I still need to dig deeper into the weeds of the relevant precedent, but it sure seems that the Supreme Court has long held that the definition of "tax" in the AIA is much broader than that permitted by the General Welfare Clause (how else do we understand the twin Bailey cases from 1922?), and that it extends to any exaction collected by the Commissioner in the ordinary course of revenue collection under the IRC (specifically including "penalties").

* I can envision a differently-motivated collection of five justices who could come together to embrace the conclusion that the AIA strips the Court of jurisdiction. One would surmise there are four votes to uphold the mandate (Ginsburg, Breyer, Sotomayor, and Kagan). All four of these justices may well be amenable to the jurisdictional argument if it prevented the other five from invalidating the ACA. Thus, all it would take is either Kennedy or Roberts to conclude that the Court would be better off not deciding the question for the time being. And one could easily envision either or both thinking along those lines.

* Of course, were the Court to so hold, Congress might well step in to eliminate this jurisdictional bar by amending the AIA (or inserting a specific judicial review provision into the ACA). But by then, the Court would not be able to decide the case until after the 2012 election.

* Again, one could see why a majority of the Court would favor this. If Obama wins re-election, the Court would finally need to address the question. And if the Republicans win the White House and the Congress, much of the ACA might well be repealed, rendering the constitutional dispute moot. The ACA (or at least the individual mandate) would disappear without the Court having to dirty its hands. Regardless, the Court would be no worse off, and perhaps much better off from having stayed out of the fight entirely.

* In short, there are some strong institutional and ideological reasons that a majority of justices might prefer to push out their decision as far as possible, and particularly beyond the 2012 election. And the Anti-Injunction Act potentially provides a perfect vehicle for doing so--an objective, legally viable, and quite technical way of staying out of the fray. And staying out of it, at least as long as possible, might be the best antidote possible to any lingering bad feelings from Bush v. Gore, where the Court's intervention, protests to to the contrary, was hardly "unsought."

An updated scorecard

For those who like counting things:

A. Courts of Appeals

* Courts upholding the mandate: one (the Sixth Circuit, by a vote of 2-1).

* Courts invalidating the mandate: one (the Eleventh Circuit, by a vote of 2-1).

(One could also count a vote, or even two, in the Fourth Circuit's Liberty University decision as upholding the mandate--but that might be cheating.)

B. District Courts

* Courts upholding the mandate: three or four (the Eastern District of Michigan, the Western District of Virginia, the District for the District of Columbia, and the Northern District of Ohio, following the circuit precedent of Thomas More Law Center).

* Courts invalidating the mandate: three (the Eastern District of Virginia, the Northern District of Florida, and the Middle District of Pennsylvania).

These are the decisions that have reached the question of whether the minimum coverage provision is constitutional on the merits. Several other decisions have dismissed challenges on jurisdictional grounds.