Justices grant Affordable Care Act petitions

Just as it did almost eight years ago, the Supreme Court will once again weigh in on the constitutionality of the Affordable Care Act’s individual mandate. The justices announced today that they had granted two petitions involving the ACA – one by California and a group of states, the other by Texas and a different group of states – asking the Supreme Court to review a ruling by the U.S. Court of Appeals for the 5th Circuit that struck down the mandate. The justices will hear oral argument in the case next fall, with a decision likely to follow sometime in 2021.

The Supreme Court has already rejected a challenge to the constitutionality of the mandate once. In 2012, Chief Justice John Roberts agreed with the court’s four more liberal justices that the mandate was constitutional because the penalty imposed on individuals who did not buy health insurance was a tax, which the Constitution allows Congress to impose.

But in 2017, Congress enacted an amendment to the ACA that set the penalty for not buying health insurance at zero – but left the rest of the ACA in place. That change led to the dispute that is now before the court: A group of states led by Texas (along with several individuals) went to federal court, where they argued that because the penalty for not buying health insurance is zero, it is no longer a tax and the mandate is therefore unconstitutional. And the mandate is such an integral part of the ACA, they contended, that the rest of the law must be struck down as well.

California and the other states joined the lawsuit to defend the mandate. The district court agreed with both the challengers’ arguments, holding that the mandate is now unconstitutional and that, as a result, the entire ACA should be invalidated. In December, the 5th Circuit upheld the district court’s conclusion that the mandate is unconstitutional. However, the court of appeals sent the case back to the lower court for it to reconsider what Congress had in mind when it eliminated the penalty and whether any parts of the ACA could still survive.

In January, the states defending the mandate and the U.S. House of Representatives went to the Supreme Court, filing two separate petitions for review. They asked the justices to step in immediately and decide whether the mandate is constitutional, without waiting for the lower courts to act. Doing so, the states and the House argued, would eliminate the “massive uncertainty” that currently surrounds the future of the ACA; otherwise, they suggested, the case would not return to the Supreme Court until 2022. Moreover, the states and the House urged the justices to fast-track the two petitions for review, to ensure that the dispute could be briefed and argued this term if review were granted.

After the justices declined to expedite their consideration of the petitions, in February the federal government, Texas and other states and the individuals challenging the mandate all filed briefs opposing review. They stressed that the court should stay out of the dispute for now and instead wait for the lower courts to rule. Everyone involved in the case agrees, the federal government noted, that a failure to comply with the individual mandate “no longer carries any significant real-world consequence”; as a result, the question whether the mandate is constitutional “is not itself a matter of any practical urgency.” What California and the House really want the Supreme Court to decide, the government argued, is how much of the ACA can survive if the mandate is unconstitutional – even though the 5th Circuit did not reach that question. Waiting until the lower courts have ruled again will also simplify the inquiry into whether California and the other states even have a legal right to appeal the ruling, the government added.

Today the Supreme Court granted California’s petition for review, which asks the justices to weigh in on three questions: whether the challengers have a legal right to sue at all; whether the mandate is now unconstitutional; and whether, if the mandate is unconstitutional, it can be separated from the rest of the ACA. The justices also granted a cross-petition filed by Texas, which asks the court to decide whether the district court was correct in deeming the entire ACA invalid.

The two petitions will be consolidated for one hour of oral argument. The oral argument will likely be scheduled for October of this year, in the run-up to the 2020 presidential election, although the justices almost certainly will not issue their ruling until after the election – and probably even the inauguration.

This post was originally published at Howe on the Court.