The U.S. Supreme Court today agreed to review a lower-court decision declaring the Affordable Care Act unconstitutional on grounds that the individual insurance purchasing mandate central to its operation had been repealed by Congress in the 2017 Trump tax bill. Oral arguments are likely to be held this autumn, with a decision not coming down until 2021.
The outcome of this decision is obviously a big deal, since a complete victory for the conservative states that brought this challenge would accomplish the repeal of Obamacare that a then-Republican-controlled Congress could not consummate in 2017. But the result has almost been overshadowed by its timing. When the conservative-dominated Fifth Circuit Court of Appeals upheld a district court ruling that the Obamacare mandate was unconstitutional, it instructed that same district court to deliberate further on whether the entire Affordable Care Act could be left in place without it. In January, defenders of the ACA urged the Court to intervene immediately to resolve the issue, and SCOTUS refused to fast-track the case. Both the states bringing the suit and the Trump administration urged SCOTUS to wait even longer, until the lower court activity is completed, to punt the whole troublesome issue past the November elections. Today’s action is thus a political setback for Obamacare opponents, even if it brings their legal challenge closer to a final resolution.
The underlying issue goes back to the 2012 SCOTUS decision killing an earlier challenge to the ACA, in which Chief Justice John Roberts deemed the individual mandate constitutional under Congress’s taxing power. Since the tax penalty for noncompliance with the mandate was lowered to zero by Congress in 2017, Obamacare challengers argue, it’s no longer a tax and is thus unconstitutional.
The mandate being a moot issue at this point, the real thrust of the litigation is an effort to bring down the whole Affordable Care Act on the theory that Congress made ACA’s enforcement strictly conditional on the mandate’s existence. The counterargument is that Congress itself took out the tax penalty without touching the rest of the ACA, so the broader law can clearly survive the death of the mandate.
We’ll now get to hear a lot more about these arcane matters just as voters are making up their minds about control of the White House and Congress, as Adam Liptak notes:
The court did not say when it would hear the case, but, under its ordinary practices, arguments would be held in the fall and a decision would land in the spring or summer of 2021.
Democrats, who consider health care a winning issue and worry about possible changes in the composition of the Supreme Court, had urged the justices to act quickly even though lower courts had not issued definitive rulings. They wanted to keep the fate of the Affordable Care Act, sometimes called Obamacare, in the public eye during the presidential campaign and to ensure that the appeal was decided while justices who had rejected earlier challenges remain [on] the court.
It says a lot that Republicans want to hush up their latest effort to overturn expanded health-care coverage until the 2020 elections are safely behind them. They’ll be praying for big, distracting news on the day SCOTUS takes up this case.