Update: On Friday, January 3, the states and the House of Representatives had asked the court to fast-track consideration of their motion to expedite review of their petitions by directing the respondents to file their opposition to the motion by January 7, which would allow the justices to consider the motion at their January 10 conference. On Monday, January 6, the justices ordered the respondents to file their opposition by 4 p.m. on Friday, January 10 — presumably too late to allow the motion to be considered at the conference that day. The next regularly scheduled conference at which the justices could consider the motion to expedite will take place on Friday, January 17.
It has been almost eight years since a divided Supreme Court, with Chief Justice John Roberts providing the deciding vote during the middle of a presidential election, rejected a challenge to the constitutionality of the Affordable Care Act’s individual mandate – the requirement that virtually all Americans obtain health insurance or pay a penalty. On Friday, the House of Representatives and a group of states with Democratic attorneys general asked the Supreme Court to reaffirm that the mandate is constitutional, once again during a presidential campaign, but this time on a fast track and before review in the lower courts is completed.
In 2012, a majority on the Supreme Court rejected the federal government’s argument that Congress had the power to enact the mandate as part of its authority to regulate commerce. But in a surprise twist, Chief Justice John Roberts joined the court’s four more liberal justices in upholding the mandate on another ground: The penalty imposed on individuals who did not buy health insurance was a tax, which the Constitution permits Congress to impose.
Five years later, as part of the Tax Cuts and Jobs Act of 2017, Congress amended the ACA to set the penalty for failure to buy health insurance at zero, while leaving the rest of the act in place. That prompted two individuals and a group of states to go to federal court in Texas, where they argued that because the penalty is now zero, it can no longer be considered a tax, and the mandate is therefore unconstitutional. Moreover, they contended, without the individual mandate, the rest of the ACA is also invalid.
The federal government declined to defend the ACA, so a group of states, as well as the District of Columbia, joined the lawsuit to do so. The federal judge assigned to the case, Judge Reed O’Connor, agreed with the challengers that the mandate is now unconstitutional. And because the mandate was the “keystone” of the law, O’Connor concluded, the rest of the ACA should fall as well.
The states and the District of Columbia, joined by the U.S. House of Representatives, appealed to the U.S. Court of Appeals for the 5th Circuit, which heard oral argument in the case in July. In its decision last month, the court of appeals agreed that the mandate is unconstitutional, but it sent the case back to the district court for O’Connor to take another look at what parts, if any, of the ACA might still survive, and what Congress’ intent was when it eliminated the penalty.
On Friday the states and the House of Representatives filed two petitions asking the Supreme Court to weigh in on the constitutionality of the mandate immediately, as well as the ACA’s viability if the mandate is struck down, without waiting for the lower courts to act. Both petitions portray Supreme Court review as inevitable. The Supreme Court, the states note, “normally grants certiorari when a lower court has invalidated a federal statutory provision on constitutional grounds.”
But the justices need to intervene now, the states and the House emphasize, because of the “paralyzing uncertainty” about the ACA that the 5th Circuit’s decision has created. Families will have more trouble making decisions about what jobs to take or whether to start a family based on their access to health insurance, the states and the House explain, while doubt about the future of the ACA could also affect health-insurance companies as they decide whether to offer insurance on the online marketplaces in each state and, if so, at what rates. “States,” the House adds, “must live with, and plan for, the possibility that they will lose billions of dollars in Medicaid subsidies” if the ACA is struck down. “The debilitating effects of this massive uncertainty will likely persist for years if the Court does not grant review now,” the House continues, because the case otherwise likely would not come back to the Supreme Court until 2022 – at which point the justices would consider the same questions that they are being asked to decide now.
In separate motions, the states and the House ask the justices to expedite consideration of their petitions, with the ultimate goal of having the cases – if granted – briefed and argued this term. They propose two possible briefing schedules for the petition, which are best described as short and shorter. Under one schedule, the briefs in opposition would be due on February 3; the case would be distributed to the justices on February 5; the reply brief would be filed on February 12; and the justices would consider the case at their February 21 conference, with oral argument to follow in late April or “at a special sitting in May 2020.” Under the second schedule, the briefs in opposition would be due, and the case would be distributed to the justices, on January 21; the reply brief would be filed on January 23, and the justices would consider the case at their January 24 conference, with oral argument in late April.
The states and the House also asked the justices to fast-track consideration of their motion to expedite, by directing the respondents to file any opposition to the motion by January 7 and considering the motion at their January 10 conference. The court’s response to this request could provide at least an initial hint at how the justices view the petitions by the states and the House.
This post is also published on SCOTUSblog.