The great “Constitutionality of the Health Reform Bill” contest is now tied, one to one. Earlier this summer, the Sixth Circuit, which hears appeals from federal courts in Michigan, Ohio, Kentucky, and Tennessee, ruled, in a two to one vote, that the bill is constitutional. Today, the Eleventh Circuit, which hears appeals from federal courts in Florida, Georgia, and Alabama, ruled, in another two to one vote, that it is unconstitutional.
The main message is that the Supreme Court is going to decide this issue. Before today, there was some chance that all the circuit courts would agree and the Supreme Court would not get involved; the circuit split created by the 11th Circuit decision makes that highly unlikely. It is not impossible – in either case the losing side can ask the entire court (not just the three judges on that particular panel) to rehear the appeal, taking it “en banc.” So the full Sixth or Eleventh Circuit (or both!) could overturn their panels. It seems more likely, though, that the full courts, expecting the Supreme Court ultimately to resolve the issue, will let these decisions speed up to the next level.