The recent high profile decision by the Eleventh Circuit affirmed the opinion by a lower court that the individual mandate under the health reform law is unconstitutional. However, the three-judge panel, which split 2-1, reversed the lower court on the issue of severability and found that the entire Patient Protection and Affordable Care Act should not be struck down, even though the individual mandate fails on constitutional grounds. There is now a circuit split between the Eleventh Circuit and the Sixth Circuit on the issue of the individual mandate, making it increasingly likely that the Supreme Court could resolve the matter even before the November 2012 election.

On August 12, 2011, the U.S. Court of Appeals for the Eleventh Circuit issued an opinion that found the individual mandate under the Patient Protection and Affordable Care Act (ACA) to be unconstitutional. In a reversal from the original federal district court decision on appeal, however, the Circuit Court found that the individual mandate was severable from the remainder of the ACA, and therefore concluded that the remaining parts of the ACA should stand. The greatest potential impact of the decision is twofold. Now that there is a circuit split between the Eleventh Circuit and the Sixth Circuit regarding whether the individual mandate is constitutional, the Supreme Court of the United States may take up the matter relatively soon, which makes it quite possible the high court will hear the case and rule on it prior to the November 2012 election. In addition, to the extent the high court finds the Eleventh Circuit’s reasoning on severability to be persuasive, the Eleventh Circuit opinion may have decreased the odds of the whole ACA being struck down by the Supreme Court.