As the first anniversary of the Patient Protection and Affordable Care Act approaches on March 23, five district courts have issued final judgments on the issue of whether the Act itself is constitutional. The score is 3-2 in the federal government’s favor, but all five cases are on appeal at this time. The principal issue in those cases is the Act’s “individual mandate,” which requires most individuals to purchase health insurance beginning in 2014 or to pay a penalty for not doing so.

Jennifer Gokenbach, from Ogletree Deakins’ Denver office, has blogged a well thought-out summary of the issues being faced by the courts – and ultimately by employers – and cites to an argument developed by our colleague, Tom Christina, in Ogletree’s Greenville, SC office. Tom’s theory, which he debuted at a presentation at the American Enterprise Institute (AEI) late last year, is a “sovereignty-based” argument, which recently has been cited in a number of blogs and seems to be gaining some traction as a viable and important argument in the discussions involving the cases now on appeal.

If you’re interested in more detail about these issues or Tom’s theory, check out Jennifer’s blog at, where you can find links to Tom’s powerpoint pages on the topic, and a link to the video of his presentation at the AEI.