A divided panel of three judges in the Eleventh Circuit Court of Appeals in Atlanta, Georgia found the "individual mandate" in health reform, the section that requires all individuals to own health insurance, to be "unconstitutional." The opinion ran over 300 pages as it described that "what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die."The lone dissenter, Judge Marcus wrote the following, "The individual mandate was designed and intended to regulate quintessentially economic conduct in order to ameliorate two large national problems: first, the substantial cost shifting that occurs when uninsured individuals consume health care services—as virtually all of them will, and many do each year—for which they cannot pay; and, second, the unavailability of health insurance for those who need it most—those with pre-existing conditions and lengthy medical histories.” (Emphasis added). The judges agreed that the rest of the health reform law remained constitutional.
There is now disagreement among the Circuits. Recall, in June, the Sixth Circuit Court of Appeals in Cincinnati, Ohio upheld the individual mandate and health reform law. The Fourth Circuit Court of Appeals in Richmond, Virginia has yet to make its ruling.