January 7, 2020

A group of Democratic state officials and the Democratic-led U.S. House on Friday filed separate legal briefs asking the Supreme Court to immediately take up a lawsuit seeking to overturn the Affordable Care Act (ACA).

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About the lawsuit

The lawsuit, filed in February 2018 by attorneys general (AGs) from more than a dozen Republican-led states, argues that a 2017 tax reform law rendered the ACA's individual mandate unconstitutional by zeroing out the mandate's tax penalty for remaining uninsured. That's because the Supreme Court in 2012 ruled that the mandate would be unconstitutional without a tax penalty.

The GOP AGs also argue that the ACA cannot be separated from the individual mandate because the law does not include a severability clause stating that some parts of the law may stand if other parts are struck down. Therefore, the AGs claim the entire law must be invalidated if the individual mandate is struck down as unconstitutional.

U.S. District Judge Reed O'Connor in December 2018 agreed with the Republican AGs, but Democratic AGs who are defending the ACA in the case appealed O'Connor's ruling to the U.S. Court of Appeals for the Fifth Circuit. House lawmakers also have joined in the lawsuit to defend the ACA.

In March, the Department of Justice (DOJ), which declined to defend the ACA in the suit, said it agrees with O'Connor's ruling that the entire ACA should be struck down—a reversal from the department's previous position that the ACA could stand without the mandate.

Last month, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in a 2-1 ruling agreed that the individual mandate is unconstitutional without its tax penalty, and therefore struck down the mandate. But the appeals court panel did not weigh in on the question of severability—or whether the rest of the ACA can stand without the individual mandate. Instead, the panel sent that question back to the lower court.

Democratic state officials, US House request expedited review of ACA case

On Friday, a group of officials from 20 states and Washington, D.C., filed a legal brief asking the Supreme Court to review the lawsuit during the court's current session and to issue a decision on the ACA's legality before its current term ends in June, noting the high-stakes nature of the lawsuit.

The state officials argued that sending the case back to the lower court would prolong uncertainty over the ACA and damage the U.S. health care system by disrupting various sectors of the health care market and putting Americans' health coverage at risk.

"The actions of the lower courts have cast doubt on hundreds of other statutory provisions that together regulate a substantial portion of the nation's economy," the officials wrote in the brief, adding, "States, health insurers, and millions of Americans rely on those provisions when making important—indeed, life-changing—decisions."

The officials recommended that the Supreme Court hear the case under an accelerated briefing schedule that would allow the high court to add the lawsuit to a private conference scheduled for Feb. 21. The officials suggested the Supreme Court hold oral arguments in the case on April 29, which is the last day of scheduled oral arguments for the Court's current session, or hold a special sitting for oral arguments on the case in May.

The Democratic-led House on Friday filed a similar legal brief requesting the Supreme Court take up the case with an expedited review. House Speaker Nancy Pelosi (D-Calif.) in a statement said, "Every day that Republicans' anti-health care lawsuit is allowed to endure is a day that American families will be forced to live in uncertainty and fear."

Only four Supreme Court justices would need to agree to hear the case under the Court's typical schedule for it to do so, which likely would mean the Court would hold oral arguments in the case in the fall. In contrast, five justices would need to agree to expedite the case's review in order for the court to do so.

Supreme Court asks for more briefs

The Supreme Court on Monday ordered the Republican AGs and the Trump administration to respond to the latest appeal by Friday, which NBC News report is faster than the month the Supreme Court typically gives for parties to file a response. According to NBC News, the quick turnaround could set the Supreme Court up to hear the case this spring. Though several observers have noted the court likely will decide to let the case play out in the lower courts before being becoming involved in the lawsuit (Sullivan, The Hill, 1/3; Sanger-Katz, "The Upshot," New York Times, 12/3; Luthi, Politico, 1/3; Goldstein/Barnes, Washington Post, 1/3; Hurley, Reuters, 1/3; Williams, NBC News, 1/6).

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