The U.S. Supreme Court denied a request from a cadre of Democratic state attorneys general and Democrats in the U.S. House of Representatives to fast-track a review of a Republican lawsuit challenging the constitutionality of the Affordable Care Act — leaving the fate of the law in limbo until after the 2020 elections.
The court, however, has yet to say if it will hear the challenge.
U.S. Supreme Court
While it takes four votes from the justices to hear a case, it takes five to expedite it.
If the court hears the case, it may take it up in its fall term — potentially before the November elections, though it is unlikely to render a decision until after American voters decide who they want leading the nation in the White House and on Capitol Hill.
"It's possible that the four liberals would've granted the motions to expedite, but they couldn't get a fifth vote," University of Michigan Law Professor Nicholas Bagley tweeted. "It's also possible that the four liberals are disinclined to hear the case now and want to wait for further proceedings in the lower courts. We just don't know."
What is known for sure, Bagley added, is that the lawsuit will "hang over the coming election."
At stake are a number of programs and protections created by the ACA — former President Barack Obama's signature legislative achievement.
Most notably, Americans with preexisting medical conditions could be put at risk of losing their insurance coverage, since those safeguards against discrimination were put into place under the ACA.
The lawsuit was brought by a coalition of Republican state attorneys general and the Trump administration, which are seeking to invalidate the ACA.
On Dec. 18, 2019, a three-judge panel from the U.S. Court of Appeals for the 5th Circuit ruled the ACA's individual mandate unconstitutional.
A group of 20 Democratic attorneys general, led by California's Xavier Becerra, and lawyers for the House of Representatives asked the Supreme Court in Jan. 3 petitions for an expedited review of the 5th Circuit's ruling.
While the appeals court did not invalidate the entire law, the situation created uncertainty for its future, Democrats said. The 5th Circuit returned the case to the lower district court in Texas to decide if other provisions in the 2010 healthcare law could survive without the individual mandate.
After repeatedly arguing the ACA was unconstitutional, the Trump administration and the Republican state attorneys general told the Supreme Court they were not in any hurry for the justices to decide if the decade-old law should be invalidated.
They argued that when Congress zeroed out the ACA's tax penalty for the individual mandate under the 2017 tax reform bill, that action rendered the remainder of the healthcare law unconstitutional.
Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas agreed, saying in his December 2018 ruling that the individual mandate penalty could not be severed from the rest of the law.
But the 5th Circuit told the Texas judge to use a "finer-toothed comb" to reassess whether other parts of the ACA should be saved.
In amicus briefs filed with the Supreme Court, over four dozen economic and policy experts, as well as a number of groups representing insurers, hospitals and consumers, told the justices that "leaving the ACA in limbo for another year or more needlessly threatens injury to every kind of participant in the U.S. healthcare system."
"The argument will have particular urgency if, in the regular course, the Supreme Court decides to hear" the case in the fall, Bagley said.
No matter what the Supreme Court decides to do with the lawsuit, Bagley said it "ought to be a centerpiece of the campaign — even if the court decides to sit this one out."
The public deserves to know the challenge to the ACA remains "a small but deadly serious threat" to the 2010 law, "whatever the court does for now," he added.
"The ultimate Democratic presidential nominee will no doubt attack President Trump relentlessly for his support of the lawsuit to overturn the ACA and preexisting condition protections," Larry Levitt, executive vice president for health policy at the nonpartisan, nonprofit Kaiser Family Foundation, tweeted. "What's not yet known is how vulnerable to attack the Democratic nominee will be as well."