The U.S. House and Democratic state attorneys general from around the country on Friday asked the Supreme Court to step in and decide the fate of the Affordable Care Act, following an appeals court’s decision that the law’s individual mandate was unconstitutional.
“We’re asking the Supreme Court to swiftly resolve this repeal lawsuit for the sake of saving lives and ending uncertainty in our healthcare system,” California Attorney General Xavier Becerra said in a statement accompanying the news.
The parties also asked the Supreme Court to expedite consideration of the case, given its implications for the country’s health care system.
If the Supreme Court grants the request to take up the appeal, it stands to elevate health care as a major issue going into the 2020 election. Republicans’ failed attempt to repeal Obamacare played a defining role in Democrats’ 2018 takeover in the House.
The Justice Department has argued in the case that not only is the Obamacare mandate now unconstitutional, but that the entire law — including its Medicaid expansion and the its protections for pre-existing conditions — must also be invalidated.
The blue states and the U.S. House are asking the Supreme Court to consider whether the individual mandate was made unconstitutional by a provision in 2017’s GOP tax law making the mandate fine $0, and, if constitutional, whether the mandate can be severed from the rest of the health care law. It is also asking the court to review whether the red states who are seeking to dismantle the Affordable Care Act even had the standing to bring the lawsuit in the first place.
It only takes the votes of four justices to agree to take up a case, meaning the Democratic appointees on the court could grant to review — particularly if they think that Chief Justice John Roberts, who has twice before voted uphold Obamacare — would again be on their side.
While it always seemed likely this case would make it to the Supreme Court’s door step, particularly after conservative-leaning lower courts ruled against the Affordable Care Act, the timing of such a request for review had been unclear until now.
When the district judge ruled in favor of invalidating the entire law in 2018, he put the decision on hold for it be appealed. The appeals court, in its ruling last month, also set up a circumstance for the case to be slow rolled. While affirming that the mandate was unconstitutional, it asked the district court to re-examine its decision as to whether the rest of the law can be severed from the mandate.
Nonetheless, the House and Democratic attorneys general made the calculation to bring the case to the Supreme Court right away. They also filed briefs laying out an expedited schedule that would allow for the Supreme Court to hear oral arguments this spring. While it takes only four votes for the Supreme Court to take up a case, five justices must agree to expedite it.
The appeals court decision, the House said in its request for expedited consideration of the case, 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.”
The case puts the GOP — and particularly vulnerable Republican senators — in an uncomfortable position politically. Many of them made statements ahead of the passage of the 2017 tax law asserting that it would not undermine Obamacare’s more popular provisions — including the pre-existing conditions protections — and have since distanced themselves from the lawsuit.
“Numerous legislators made clear that their support for the 2017 amendment was contingent on their understanding that all other provisions of the Act—particularly its protections for people with preexisting conditions—would remain in force,” the Democratic attorneys general said in their request the justice take up the case.
The Justice Department, reportedly at the behest of White House chief of staff Mick Mulvaney, has only doubled down on its support of the GOP lawsuit, by expanding its position last year to argue that all of the Affordable Care Act must go down, not just certain provisions.
Below, read the state attorneys generals’ petition to the Supreme Court and their request for expedited consideration, followed by the House of Representatives’ petition and its request for expedited processing.