In the second case, a challenge to the law brought by the Commonwealth of Virginia, the government argued that the judges should throw the case out before even considering the merits. Katyal said that Virginia did not have the legal right or "standing" to bring the case in the first place because the individual mandate applies only to individuals and not the Commonwealth.
Lawyers representing Virginia argued that the federal law interferes with a state law already on the books that says residents cannot be forced to buy health insurance.
Eleventh Circuit: Arguments heard June 8 in Atlanta.
This challenge is brought by 26 states, the National Federation of Independent Businesses and two individual plaintiffs. The panel consisted of Judge Frank M. Hull and Judge Stanley Marcus, both Clinton appointees, and Chief Judge Joel F. Dubina, a George H.W. Bush nominee.
Paul Clement, considered one of the finest appellate lawyers in the country, represented the states and argued that the case turns on "whether or not the federal government can compel an individual to engage in commerce."
Clement also argued that Congress had gone too far in passing another provision of the law that expands the reach of Medicaid. Clement said the law will force the states to add significant administrative expenses and force them to eventually cover more citizens through Medicaid. According to the law, the federal government will initially fund 100 percent of the expanded benefits.
Because the challenge to the Medicaid provision is applicable to the states, the government does not challenge their legal right to bring the case.
District Court Judge Roger Vinson, the lower court judge who heard this case, ruled against the administration, going further than any other judge by throwing out the entire law.
"I must conclude that the individual mandate and the remaining provisions are all inextricably bound together in purpose and must stand or fall as a single unit," he wrote.
Will the Challenges Reach the Supreme Court?
The cases from the two appellate courts are eagerly anticipated because the Supreme Court is likely to wade into an issue if there has been a split at the Circuit Court level.
Although the District Court judges hearing the issue broke down on partisan lines, some wonder whether Sutton's appellate court opinion will sway other conservative appellate judges hearing the issue.
"There is no guarantee that this litigation will ultimately reach the Supreme Court. If the circuit courts follow the lead of the Sixth Circuit and Judge Sutton, these courts will find for the ACA under clear Supreme Court precedent and the Constitution's text and history," says Elizabeth B. Wydra, chief counsel of the Constitutional Accountability Center, which supports the law.
"Because the district courts have so far decided the issue on such partisan lines, it has made it more of a significant constitutional dispute than I would have ever expected," said Dawn Johnsen, a professor of law at the Maurer School of Law at Indiana University, who also supports the law.
"The extensive litigation and commentary make the constitutional issue seem more difficult than it is," she said. "It is a straightforward case of Congress regulating interstate commerce on an economic issue of tremendous national significance. To say or hold otherwise is a dramatic departure from precedent and an extreme new limit on congress' power to regulate on issues of national importance."
But in a post to the popular website, Scotusblog, Robert Levy chairman of the Cato Institute, a public policy think tank devoted to individual liberty and limited government, says an eventual circuit split is "likely."
"No one could plausibly argue that the Commerce Power is so elastic as to compel the purchase by every American of an unwanted, government-designed product from a private company," he writes.