The justices on Monday announced that they would take the case but did not give a timetable, which customarily means they would hear the case in the next term.
“They didn’t say anything about the schedule — that means it will be argued next term in the normal course,” Nicholas Bagley, a law professor at the University of Michigan, told HuffPost. “The parties can move for expedited consideration again, but I think it’s very unlikely to happen.”
The court’s official calendar shows six days of oral arguments before the presidential election, which take places Tuesday, November 3. But it typically takes weeks, sometimes months, after oral argument for the justices to issue rulings.
As a result, the outcome of the lawsuit is likely to remain unknown when Americans go to the polls, even though the case is part of a decadelong battle between the nation’s two political parties ― and even though a ruling in favor of the lawsuit would unleash chaos while directly affecting literally tens of millions of Americans.
“The court will hear the case in the fall — whether before the election or after, we don’t yet know — with a decision to come in the spring of 2021,” Bagley said.
The case, Texas v. U.S., comes from 20 Republican state officials and has the support of President Donald Trump. It claims that a newly introduced, fatal constitutional flaw in the law known as “Obamacare” requires that the federal courts end the entire program.
If that were to happen, 20 million people could lose health coverage, according to projections from the Urban Institute. Far-reaching provisions of the law, including its protections for people with pre-existing conditions, would also come off the books.
Democratic officials from 20 states plus the District of Columbia, along with the U.S. House of Representatives, have stepped in to defend the Affordable Care Act because the Justice Department, heeding Trump’s order, will not.
These Democrats argue that the lawsuit has no merit, and they have the weight of the legal establishment on their side. Even lawyers aligned with Republicans who shaped previous challenges to the Affordable Care Act have said they think this latest challenge should fail.
But the lawsuit has already won in a U.S. District Court, and late last year its core argument carried the day before a three-judge panel from the U.S. 5th Circuit Court of Appeals.
The central issue in the case is the Affordable Care Act’s “individual mandate,” which is ― or, more precisely, was ― a financial penalty for people who do not have insurance. The 2017 Republican tax cut, passed by Congress and signed by Trump, left the language of the mandate in place but reduced the penalty to zero.
In a previous challenge to the Affordable Care Act, the Supreme Court had upheld the mandate as a legitimate use of congressional power to tax. If the penalty is zero, the lawsuit claims, then the mandate can’t be a tax, rendering it unconstitutional.
And if it’s unconstitutional, the lawsuit says, then the whole law is, too, because the mandate is supposedly an essential part of the law’s machinery.
The district judge, Republican appointee Reed O’Connor, endorsed this argument. Two circuit court judges, both of them also Republican appointees, agreed with him about the mandate’s constitutionality. (A third judge, a Democratic appointee, dissented.)
But the two circuit judges said they weren’t so sure the rest of the law had to go. They sent the case back to O’Connor with instructions to go back through the Affordable Care Act to see if maybe some parts can remain.
That could have dragged out the case for years, since O’Connor would have needed time to issue a new ruling, and then his ruling would have prompted yet another appeal to the circuit court, and then that circuit court’s new ruling would just as inevitably have prompted an appeal to the Supreme Court.
Rather than wait for that process to play out, the Democratic lawyers asked the Supreme Court to take the case directly and do so as quickly as possible. On Monday, the court said yes to taking the case but no to taking it right away.