SCOTUS Keeps Alive Chance Of Deciding Big Obamacare Case Before The Election

President Donald Trump looks on during an event recognizing the Wounded Warrior Project Soldier Ride in the White House on April 18, 2019. (Photo by Drew Angerer/Getty Images)
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February 5, 2020 12:46 p.m.

The Supreme Court left open the possibility that it could decide a major Obamacare case coming out of Texas by the end of this term, with a scheduling notice Wednesday indicating the justices will discuss whether to take up the case on Feb. 21.

Those seeking to defend the Affordable Care Act in the litigation had laid out a Feb. 21 conference date in one of their proposed timelines for review of the case that would allow the Supreme Court to issue a final ruling by the summer.

The case is a legal challenge by several Republican states, and supported by President Trump’s Justice Department, that, if successful would dismantle the health care law in its entirety. The challengers argue that the 2017 tax law, by zeroing out the individual mandate, rendered the entire Affordable Care Act unconstitutional.

Blue states and localities, as well as the House of Representatives, are defending the health care law in the case and sought the Supreme Court’s intervention last month.

A federal judge in 2018 sided with the GOP challengers, ruling that the entire law must be struck down, but putting that ruling on hold while it was appealed. The appeals court in December upheld the judge’s decision that the individual mandate was unconstitutional, but sent the case back to him to reconsider whether the mandate could be severed from the rest of the law. The maneuver had the effect of putting off the next major decision in the case for several months, if not years, taking political pressure off of Republicans as they head into the 2020 election and letting uncertainty swirl around the law.

The law’s Democratic defenders then requested that the Supreme Court take up the case, and that it expedite that review so that Obamacare’s fate could be decided this term. That gambit had appeared to fail when the court form formally rejected the request for expedited treatment on Jan. 10.

It takes only four votes for the Supreme Court to grant review of a case — meaning the liberal wing alone could decide to take it up — but five votes to fast-track a case, meaning that a conservative justice would need to join them in expediting the review.

A series of under-the-radar moves since then led to Wednesday’s revival of the possibility that the court could hear the case this term after all.

After the denial for expedited consideration, the Republican state challengers had sought an extension for the deadline to respond to the Democrats’ request that the Supreme Court grant review of the case. The extension would have put a nail in the coffin for the possibility of the case being heard this term.

But on Jan. 24, in a move that did not attract much attention, the court denied the extension request. It’s unclear how that denial decision was made. The extension denial made it possible for the court to discuss the case on Feb. 21, which still allows it to grant review in time to hear the case this term.

Still, several other things must go the Democrats’ way for the case to be decided this year. First, the justices will need to announce that they’re granting review of the case by either the afternoon of Feb. 21 or the following Monday. Typically, cases that are granted by the Supreme Court are discussed for two rounds of conferences. If the justices do grant review after just one conference discussion of the case, they will also need to lay out an abbreviated briefing schedule to get oral arguments on their calendar by late Spring.

Under the proposal laid out in the House’s request for the case to be fast-tracked, oral arguments would occur either during the last week in April or in a special session called in May.

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