On Wednesday May 11, 2011, the North Carolina State legislative leadership represented by Noah Huffstetler and Rebekah Plowman of Nelson Mullins Riley and Scarborough joined their counterparts in the Minnesota state legislature and filed a friend of the court brief in the 11^th Circuit Court of Appeals joining with the State of Florida in challenging the constitutionality of the Patient Protection and Affordable Care Act.  The appeal to the 11^th Circuit was filed by the Department of Justice following a January 31, 2011 ruling by Judge Vinson that the individual mandate was unconstitutional and because the individual mandate was not severable from the rest of the law, the entire act was struck down as unconstitutional.  The friend of the court brief was filed on behalf of North Carolina Senate President Pro Tempore Phil Berger, House Speaker Thom Tillis, Senate Majority Leader Harry Brown and House Majority Leader Skip Stam.

The brief argues that PPACA is unconstitutional because (i) the individual mandate (requiring individuals to purchase health insurance) is not a valid regulation of economic activity pursuant to the United States Constitution's Commerce Clause, and that the conditions imposed upon the states pursuant to their acceptance of federal funds are insufficiently clear resulting in elected representatives not being able to convey to their constituents the ramifications of the law and (ii) the law would require the states to subject themselves to unknowable and potentially crippling obligations in order to continue their participation in the Medicaid program. A hearing in this case is scheduled for June 8, 2011.

An initial challenge to the PPACA was made within hours after its signing by the Attorney general of Florida, Bill McCollum, who was shortly thereafter joined by 12 states in opposition to the bill. As of today, there are 26 separate lawsuits challenging the law.  It is widely considered that the U.S. Supreme Court will hear one of the many legal challenges to the law as early as this year.

Notably, on December 13, 2010, a federal judge in Virginia ruled that the law's mandate requiring individuals to purchase health insurance was unconstitutional.  Oral arguments have already been heard for two appeals in the 4th Circuit, which is expected to rule soon on lawsuits brought by the state of Virginia and by Liberty University. 

On June 1, 2011, the case brought by the Thomas More Law Center was heard by the federal appeals court for the 6th Circuit.  The Kaiser Family Foundation reported that the two Republican-appointed judges on the panel pressed government lawyers on the constitutionality of the individual mandate.  However, the judges also indicated they had concerns about the plaintiffs’ standing that could keep them from ruling on the merits of the case.  A decision in this sixth circuit case is expected in the coming months.  As this is the third case to reach a federal appeals court, the stage is being set for these cases to quickly make their way to the U.S. Supreme Court.

Links to each of the cases described above and the current status of each proceeding can be found at KHN.