On January 21, the US Supreme Court declined a request to rush its consideration of Texas v United States,1 the latest case challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA). Although the court could still choose to hear the case in the fall, it almost certainly will not be resolved until next year. This means that, for the fourth time in a row, health care reform will be at the center of the presidential race.
In its tax-cut legislation of late 2017, Congress zeroed out the ACA’s penalty for going without insurance. But Congress maintained the bare instruction that people “shall” buy insurance. Eighteen Republican-controlled states filed suit, arguing that the instruction is actually a coercive command, which Congress lacks the constitutional authority to impose. What is more, they argued that the rest of the law had to be struck down on account of that constitutional defect.
The whole line of argument is indefensible and has been criticized by experts from across the political spectrum. Nevertheless, the Trump administration entered the litigation on the side of the red states, violating the executive branch’s longstanding obligation to defend the country’s laws in the courts.2 In December 2017, US District Judge Reed O’Connor, a Republican-appointed judge in Texas with a reputation for partisan rulings, declared the entire ACA invalid.
A group of Democrat-controlled states appealed, and the Court of Appeals for the Fifth Circuit in New Orleans issued a split decision in December, largely agreeing with O’Connor’s analysis. However, instead of striking down the whole law, the 2 Republican-appointed judges on the panel asked the lower-court judge to reconsider whether some parts of the law—perhaps those that have nothing to do with insurance regulation—might be salvageable.
In doing so, the Fifth Circuit looked like it was playing politics. Deciding how much or little of a law to strike down is a pure question of law, which the Fifth Circuit was fully equipped to answer itself. And the appeals court could easily have said that any constitutional defect in the law did not require its complete invalidation.
By refusing to say so, the Fifth Circuit strongly hinted that it believes all or most of the ACA should be invalidated. But it avoided reaching that incendiary conclusion in the run-up to the 2020 presidential election. It is hard to resist the conclusion that the Republican-appointed judges knew that striking down popular parts of the law—including its protections for individuals with preexisting conditions and its rules guaranteeing comprehensive insurance coverage—would be a political liability for Republicans in the upcoming election.
In the meantime, the Fifth Circuit’s decision perpetuates uncertainty over the ACA. The judge who originally decided the case might take a year on remand, with the inevitable appeal taking another year. With this timeline, the Supreme Court is unlikely to issue a final, authoritative decision until 2023—more than 3 years from now.
Dissatisfied, the blue states that are defending the ACA, together with the Democratic-led House of Representatives, asked the Supreme Court to step in immediately—indeed, to resolve the case by June of this year. By denying the motion to expedite, the Supreme Court has signaled that it will not move with that much speed. However, it could still agree to hear the case in the fall, with a decision to come in the spring of 2021.
Will it do so? In general, the Supreme Court does not like to hear cases before they are fully resolved by the lower courts. And because the ACA will remain in effect while the case works its way through the courts, delaying Supreme Court review will not affect the law on the ground.
At the same time, Texas has many hallmarks of a case that the court would normally hear. The Fifth Circuit declared an act of Congress unconstitutional in a poorly reasoned decision containing partisan jabs at the law. (The decision reports, for example, that “some opponents” say the ACA “was enacted as part of a fraud on the American people.”1) Prolonging the uncertainty over the law’s fate is bad for the health care system and for those who receive insurance under the law.
Because it only takes 4 votes to get a case heard by the full Supreme Court, the 4 liberal justices have a tough decision to make. There are good reasons for pulling the trigger now: Chief Justice John Roberts, although a conservative, has twice turned away more substantial challenges to the law, and he is unlikely to endorse such a weak lawsuit. There is also a risk that, if President Trump wins reelection in 2020, he could add hard-liners to the court who may view the case more sympathetically.
Oddly enough, the deciding factor may have less to do with law than with medicine. In August 2019, Justice Ruth Bader Ginsburg revealed that she had undergone treatment for a malignant pancreatic tumor. Although she now says that she is cancer free, pancreatic cancer is a tough diagnosis at any age, much less at 86 years. Can the liberal justices count on Justice Ginsburg to remain on the Supreme Court through the end of this year? If not, agreeing to hear the case now could be especially risky: President Trump might have a chance to replace her with a conservative justice, who could in turn provide the fifth vote for ending the ACA. Maybe it is better to wait and hope that a Democrat prevails in the coming election.
Whatever the Supreme Court decides, its refusal to expedite the case guarantees that the ACA will again be a topic of intense debate during the presidential campaign. The Democratic candidate will say—correctly—that President Trump and his administration are working to eliminate protections for people with preexisting conditions. The fate of Obamacare is on the line, yet again.
Corresponding Author: Nicholas Bagley, JD, University of Michigan Law School, 625 S State St, Ann Arbor, MI 48109 (email@example.com).
Conflict of Interest Disclosures: None reported.
Identify all potential conflicts of interest that might be relevant to your comment.
Conflicts of interest comprise financial interests, activities, and relationships within the past 3 years including but not limited to employment, affiliation, grants or funding, consultancies, honoraria or payment, speaker's bureaus, stock ownership or options, expert testimony, royalties, donation of medical equipment, or patents planned, pending, or issued.
Err on the side of full disclosure.
If you have no conflicts of interest, check "No potential conflicts of interest" in the box below. The information will be posted with your response.
Not all submitted comments are published. Please see our commenting policy for details.