State and federal Democratic leaders want the Supreme Court to review a controversial, widely derided lower court ruling on the Affordable Care Act that has jeopardized insurance for 20 million Americans and has threatened to throw the U.S. health care system into chaos.
They also want the justices to take the case right away in order to settle the issue before the November elections.
The official request came Friday, when Democratic officials from 20 states, the District of Columbia and the U.S. House filed two sets of petitions with the Supreme Court.
The first set of petitions asks the justices to hear the case of Texas v. U.S., a lawsuit Republican state officials brought and that President Donald Trump has supported. That lawsuit claims that when Trump and congressional Republicans reduced the law’s “individual mandate” penalty to zero as part of their 2017 tax cut package, they introduced a fatal constitutional flaw that requires wiping out the entire law.
The case prevailed before U.S. District Judge Reed O’Connor in 2018. The Democratic officials, who are defending the law because the Trump administration won’t, appealed to the U.S. Court of Appeals for the 5th Circuit. Last month, two judges from a three-judge panel of the 5th Circuit upheld key elements of O’Connor’s ruling, including his finding that the mandate was unconstitutional.
But the 5th Circuit judges sent the case back to O’Connor to parse through the statute more carefully and decide whether some parts of it can survive. That order threatens to keep the case tied up in litigation for up to three years, given that O’Connor’s decision would likely prompt yet another appeal to the 5th Circuit, whose eventual decision would almost certainly invite an appeal to the Supreme Court.
That is why the Democratic officials filed their second set of petitions Friday. Rather than let that long process play out, they would like the Supreme Court to hear the case as soon as possible and issue a ruling before its current term ends in the summer.
Although the Supreme Court typically waits until lower courts are through with a lawsuit before hearing an appeal, the court can grab cases under special circumstances, and Friday’s brief argues that such circumstances exist now.
“The lower courts’ actions have created uncertainty about the future of the entire Affordable Care Act, and that uncertainty threatens adverse consequences for our Nation’s healthcare system, including for patients, doctors, insurers, and state and local governments,” the brief says.
The filing is not a surprise. When the 5th Circuit issued its ruling last month, California Attorney General Xavier Becerra, who has led the Democratic coalition fighting the lawsuit, said the states were likely to seek an immediate Supreme Court hearing. Several experts that HuffPost contacted Friday agreed that the Democratic coalition has a strong case on the merits.
“The Supreme Court has complete control over its docket, so nothing is ever a slam dunk either way,” Abbe Gluck, a Yale law professor who co-wrote a brief against the lawsuit, told HuffPost in an email Friday. “But the states have a strong case here based on many of the criteria for a grant that the Court typically uses ― namely, this is an issue of major national importance; at least part of a major federal law has been found unconstitutional; further percolation in the lower court is not necessary because the legal standard and how to apply it are clear; and delaying review will cause serious uncertainty in national economic and regulatory arenas.”
Why The GOP Lawsuit Is So Weak ― And So Dangerous
There is little dispute about the potential consequences of a ruling against the health care law known as Obamacare. The law has touched nearly every facet of the health care system, in ways that have proved both popular and unpopular. The law now prohibits insurers from screening for pre-existing conditions, for example, while those requirements have also raised premiums for some people who buy insurance on their own.
The overall effect of the law, however, has been to improve access to care, financial security and overall health, according to a large body of evidence. If it comes off the books, 20 million people would likely lose coverage, according to estimates from the Urban Institute, a left-leaning think tank based in Washington. That would represent a 65% increase in the number of Americans without coverage.
There may be even less debate about the merits of the lawsuit. The most important part of the case is its contention that wiping out the entire law is consistent with congressional intent because when Congress first passed the law in 2010, it considered the mandate an essential part of the program’s machinery.
As even conservative legal experts have pointed out, the claim doesn’t make sense given that Congress in 2017 understood it was leaving the Affordable Care Act in place when it decided to reduce the penalty to zero. It did so anyway.
The uncertainty now is over what the Supreme Court will do. It takes four votes to agree to hear a case but five votes to do so on an expedited basis. In the lower courts, this case has followed partisan lines. Both O’Connor and the two 5th Circuit judges upholding his ruling were appointed by Republicans; the 5th Circuit judge who dissented was appointed by a Democrat.
The pattern hasn’t held completely in the Supreme Court, however. Two major challenges have come before it already and both failed, with Chief Justice John Roberts, a Republican appointee, joining the four Democratic appointees each time and former Justice Anthony Kennedy, also a Republican appointee, joining them on the second of the two cases.
Kennedy’s replacement is Justice Brett Kavanaugh, a Trump appointee. His thinking on the Affordable Care Act generally and this case in particular is not clear.
Why The Court Might Grab The Case ― And Why It Might Not
The Supreme Court’s decision on these petitions may come down to strategy and guesswork on the part of those four Democratic appointees. Although they presumably find the argument in Texas v. U.S. as absurd as the rest of the legal establishment does, they would have to weigh the potential upsides and downsides of taking the case now.
“It’s a question of risk tolerance,” Nicholas Bagley, a law professor at the University of Michigan who co-authored the brief with Gluck, said Friday.
“If you wait, you’ve bought the ACA three years or so. And three years ain’t nothing. Lots can change, and the lawsuit might look even more ridiculous at that point. If you bite the bullet now, there’s a really good chance the ACA will be sustained. But there’s a [small] risk that the case goes south.”
Leah Litman, another constitutional law professor at the University of Michigan, said she saw things similarly.
The biggest factor pointing toward an agreement to expedite the case, she said, is that there are four liberals on the court now. That could change in two or three years. Plus, it’s uncertain if the chief justice will remain as a swing vote.
But if conservative justices, especially Roberts and Kavanaugh, are not inclined to hear the case now, Litman added, the more liberal justices must “consider whether to force the issue and whether they will be burning their favors [and] capital with them by granting the case now when the chief [and] Kavanaugh might not want to take it now.”
Litman noted that the protocols for how justices make these decisions aren’t clear, which means the four more liberal justices might have to vote on whether to hear the case without first knowing, for sure, whether one of the more conservative justices will provide the crucial fifth vote for holding the hearing this session.
Case Western professor Jonathan Adler, who is one of those conservative and libertarian experts openly critical of this new lawsuit, said he thinks an agreement to hear the case “on an expedited basis is unlikely but more likely than in the usual case.”
“If a petition like this would normally have a [less than] 10% chance,” Adler said, “this one might be up to 25 [to] 33%, so it’s still unlikely but plausible.”
The legal arguments are also taking place in a political environment. Democrats are eager to remind voters that Trump has repeatedly tried to repeal or undermine the Affordable Care Act, including its expansion of health insurance coverage and new protections for people with pre-existing conditions. On Friday, Becerra made that link explicit.
“While the Trump Administration fights to strip access to healthcare, our coalition moves forward to defend it — because a pre-existing medical condition should never again disqualify you from receiving affordable healthcare,” Becerra said.
CORRECTION: An earlier version of this article said that Texas v. U.S. prevailed in a U.S. District Court in 2017. It was 2018.