The stark disagreement between the two courts means the legality of the law’s centerpiece, the individual mandate, will almost certainly be determined by the US Supreme Court, scholars said.
“Especially now that you’ve got a split in the circuits, the Supreme Court almost has to take it,’’ said Douglas Laycock, a law professor at the University of Virginia.
The Supreme Court could take up the issue as soon as its next session, which begins in the fall.
The 11th Circuit ruling has no immediate bearing on the health care overhaul, which is being implemented in stages. The insurance mandate is not set to take effect until 2014. Also, government lawyers are expected to appeal the divided decision to the full appeals court.
The decision was not a complete loss for the Obama administration. It had appealed a district court decision in Florida, where Judge Roger Vinson ruled that the entire overhaul was unconstitutional, in a suit brought by 26 states to prevent implementation of the law. But the appeals court panel said the rest of the law would be constitutional if the mandate was stricken.
The judges said Vinson, who ruled that the mandate was inextricably tied to the rest of the law, had overreached and that the “lion’s share of the act has nothing to do with private insurance, much less the mandate that individuals buy insurance.’’
It is unclear how the overhaul would fare with no mandate. Without a requirement that healthy Americans buy insurance, the law’s supporters say, a crucial funding mechanism is lost and people would game the system by waiting until they are sick to get insurance. The law requires insurers to accept them even with preexisting conditions.
More than two dozen legal challenges have been filed against the law since Obama signed the measure in March 2010. Many were dismissed based on technical reasons. Three district court judges sided with the Obama administration. Two others objected to at least the insurance mandate.
