The House of Representatives, several Democratic Party-leaning states and the District of Columbia filed several separate motions on Friday requesting that the Supreme Court quickly clarify the status of the Affordable Care Act after a recent appellate court ruling said that the individual mandate was unconstitutional.
The massive 286-page filing by the states begins:
The Patient Protection and Affordable Care Act (ACA) affects the health and well-being of every American and has transformed our Nation’s healthcare system. One of its hundreds of provisions is 26 U.S.C.§ 5000A. As originally enacted, that provision required most Americans either to maintain a minimum level of healthcare coverage or to pay a specified amount to the Internal Revenue Service…In 2017, Congress amended Section 5000A to set at zero the amount of the tax imposed on those who choose not to maintain healthcare coverage—thus rendering the minimum coverage provision effectively unenforceable.
The House’s similarly lengthy 315-page filing offered the following tidy recitation of facts–additionally referencing the present case at hand:
In National Federation of Independent Business v.Sebelius, 567 U.S. 519 (2012), [the Supreme] Court upheld U.S.C. 5000A, a provision of the Affordable Care Act, as a valid exercise of Congress’s taxing power because the provision offered individuals a lawful choice between purchasing insurance and paying a tax, known as a “shared responsibility payment.” In December 2017, Congress eliminated the Act’s monetary incentive to purchase insurance by reducing the shared responsibility payment to zero, such that Section 5000A now offers individuals a choice between purchasing insurance and paying a tax of $0. In this case, the court of appeals held that Section 5000A, as amended, exceeds Congress’s constitutional authority and that the Act’s thousands of other provisions may be invalid as a result.
That prior ruling–issued by Republican-appointed Judge Jennifer W. Elrod in late December by the Fifth Circuit Court of Appeals–essentially determined that since the shared responsibility tax was effectively revoked, the mandate itself had been revoked because it served no constitutional purpose and that this may mean the entirety of the ACA is up for grabs.
“[T]he individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power,” Elrod wrote. “[O]n the severability question, we remand to the district court to provide additional analysis of the provisions of the ACA as they currently exist.”
The Elrod ruling effectively placed the ACA in a sort of holding pattern and was immediately read as a victory for Obamacare opponents.
The ruling also complicated the timeline for any sort of resolution with its remand to the lower court to determine whether or not the various ACA provisions could be severed from the mandate itself–long considered the enforcement mechanism at the heart of the healthcare system overhaul.
With Friday’s multiple petitions, the Democratic plaintiffs are more or less attempting to leap-frog much of the incoming legal back-and-forth by short-circuiting the case swiftly to the nation’s high court for consideration and resolution. (Elrod’s ruling was a 2-1 panel decision.)
The House’s separate motion to expedite offers the reasoning:
Pursuant to Supreme Court Rule 21, the United States House of Representatives (House)respectfully moves for expedited consideration of its petition for a writ of certiorari to the United States Court of Appeals for the Fifth Circuit, filed simultaneously with this motion today, as well as expedited consideration of this motion…The [Elrod decision] thus poses a severe, immediate, and ongoing threat to the orderly operation of healthcare markets throughout the country, casts doubt over whether millions of individuals will continue to be able to afford vitally important care, and leaves a critical sector of the nation’s economy in unacceptable limbo.
“Under the ordinary briefing schedules provided by this Court’s rules, the House’s petition for certiorari would not be resolved until March 2020 at the earliest, and in the event that this Court grants review, the case would not be argued and decided until next Term,” the motion continues. “In the meantime,individuals, businesses, and States will continue to face crippling uncertainty about the ACA’s validity through the 2020 enrollment period, for 2021 health coverage, and beyond.”
South Texas College of Law Professor Josh Blackman said the plaintiffs may be out of luck.
“The 5th Circuit issued its ruling on [December 20], nearly two weeks ago,” he tweeted. “I had expected California and the House to file cert petitions a few days later. I was frankly surprised by how long this motion took. The writing was on the wall after oral arguments. Their delay could cut against a motion to expedite.”
Blackman went on to explain that the Supreme Court needs five votes to expedite in order to accommodate the Democratic plaintiffs’ requests–but thinks that fifth vote will likely prove elusive.
6/ Practically speaking, either the CJ or Justice Kavanaugh will be lobbied to provide a “courtesy fifth.” If they decline to provide such a vote, the case will be heard next term.
— Josh Blackman (@JoshMBlackman) January 3, 2020
[image via Mark Wilson/Getty Images]
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