January 14, 2020

The Trump administration and a group of Republican-led states on Friday urged the Supreme Court to reject Democratic officials' request that the high court quickly review a case challenging the Affordable Care Act's (ACA) constitutionality.

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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 rest of 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 and struck down the individual mandate as unconstitutional. O'Connor also ruled that the entire ACA must be struck down along with the individual mandate. The Department of Justice (DOJ), which has declined to defend the ACA in the suit, has said it agrees with O'Connor's ruling.

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.

Last month, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in a 2-1 ruling  ruled 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

Democrats defending the ACA have appealed the latest ruling to the Supreme Court, and a group of officials from 20 states and Washington, D.C., earlier this month filed a legal brief asking the high court to review the lawsuit during its current session. The officials also asked the Court to issue a decision on the ACA's legality before its current term ends in June, noting the high-stakes nature of the lawsuit. They 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 market and putting Americans' health coverage at risk.

The Democratic-led House filed a similar legal brief requesting the Supreme Court take up the case with an expedited review.

The Supreme Court subsequently ordered Republican AGs involved in the case and the Trump administration to file briefs responding to Democrats' request within one week, which is faster than the one month the Supreme Court typically gives for parties to file such responses, NBC News reports.

Trump admin, Republican AGs urge SCOTUS to reject request for expedited review

The Trump administration and Republican AGs filed their responses on Friday and urged the Supreme Court to reject Democrats' requests for the Court to hear the case this term.

The administration said the Supreme Court does not need to address the case this term because the majority of the ACA is still in effect. Solicitor General Noel Francisco said the appeals-court panel's decision "does not warrant immediate review" because it maintained the status quo and "did not definitively resolve any question of practical consequence," such as "severability or the appropriate remedy."

A Supreme Court review of the case in the current term "thus would be premature," Francisco argued. The administration said the lower court should weigh in on the severability question—as the appeals-court panel has ordered—before the Supreme Court considers the case.

Similarly, Texas AG Ken Paxton (R), who led the coalition of Republican AGs who filed the lawsuit, said while "[t]here may come a day when [the Supreme Court's] review is appropriate," that day would be "after the issue of severability is decided." He continued, "There is no emergency justifying that departure from the ordinary course. The district court has stayed its judgment, and that stay remains in place today."

Next steps

The Supreme Court this month will determine which cases it will consider during its current term. If the Supreme Court votes to consider the ACA case this term, it likely would issue a final decision on the ACA before November's general election. Conversely, the high court likely wouldn't issue a final decision in the case until after the election if it rejects Democrats' request to expedite the case.

However, such an expedited review would require five justices to agree to hear the case this term. Politico reports that the Supreme Court rarely intervenes in cases that have not yet worked through the lower courts, but experts suggest the "high stakes" of the case could move the court to "step in."

However, other observers have said the court likely will decide to let the case play out in the lower courts before being becoming involved in the lawsuit (Barnes, Washington Post, 1/10; Luthi, Politico, 1/10; Weixel, The Hill, 1/10; Sanger-Katz, "The Upshot," New York Times, 1/10; Williams, NBC News, 1/6).

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