Supreme Court Declines to Rush Review of Obamacare Appeal (1)

Jan. 21, 2020, 2:35 PM; Updated: Jan. 21, 2020, 5:47 PM

The U.S. Supreme Court said it won’t rush to consider hearing a case that threatens to eviscerate Obamacare, likely keeping the fate of the law uncertain until after the 2020 presidential election.

The justices on Tuesday declined requests by the House and a coalition of mostly Democratic states to consider their petitions for review of the case on an expedited schedule. Under the court’s ordinary briefing schedule, March is the earliest that a decision could be made.

If the justices grant review, the case likely won’t be argued and decided until next term.

“It’s disappointing,” said Timothy Jost, a professor of law emeritus at the Washington and Lee University School of Law. “For some reason, the court doesn’t feel any urgency in figuring out the future of one-fifth of the American economy.”

It takes five justices to agree to expedite a case and four justices to grant review. Some legal scholars say it’s possible the four members of the court’s liberal wing wanted to resolve the case in short order, but couldn’t wrestle up a fifth vote.

“It’s also possible that they are not inclined to hear the case right now,” said Nicholas Bagley, a professor at the University of Michigan Law School. “We just don’t know.”

The decision came just hours before the Senate impeachment trial of President Donald Trump was set to begin. Chief Justice John Roberts will preside over the televised proceedings, marking a rare time when the chief will be on public display. Cameras aren’t allowed in the Supreme Court chambers.

The highly politicized nature of the trial may have played a role in the court’s unwillingness to speed up its review of the case, Bagley said.

“It would matter only if the chief was in the spot of having to cast the deciding vote on whether to expedite and we don’t know if he was in that position or not,” Bagley said. “If he was, I could imagine that entering his calculation. I could imagine him also saying, ‘Look, sometimes this job is busy.’”

Fate Uncertain

The House and the coalition, consisting of 20 states and the District of Columbia, are appealing the U.S. Court of Appeals for the Fifth Circuit’s decision to send the dispute over Obamacare back to the district court judge who previously struck down the law in its entirety.

The Fifth Circuit agreed with Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas that the provision requiring people to buy health insurance was unconstitutional, but told him to go through the rest of the law with a “finer-toothed comb” to see what other provisions are tied to it. O’Connor previously said none of the other provisions could survive without the mandate to buy insurance.

The appeals court’s ruling left the law in effect but its fate uncertain. Conservative legal scholars say there was no need for the court to rush its review because the court’s ruling doesn’t strip anyone of their health care.

“Most of the time the court doesn’t take cases at a preliminary stage,” said Josh Blackman, an associate professor of law at the South Texas College of Law.

“Obamacare is important and this does create a lot of uncertainty for health care, but the request to expedite was a Hail Mary and they didn’t catch it,” he said.

The court may still decide to review the case, but Blackman said it won’t do so until next fall, after the election.

“Just to be clear, the election doesn’t change the case,” he said, adding that “even if DOJ flips back to siding with the blue states, the case doesn’t change.”

Texas led a group of 18 mostly Republican states and two citizens in challenging the constitutionality of the law after the 2017 Congress dropped the tax penalty for those who fail to buy insurance to $0. The states argue that without a tax penalty, the mandate is no longer a constitutional exercise of Congress’s taxing power. And because the mandate is essential to the law’s operation, they say the other provisions are unconstitutional too.

California led the coalition of mostly blue states that intervened in the case after the DOJ refused to defend the law. In an email, a spokesperson for the California attorney general’s office said the office remains hopeful the court will ultimately hear the case.

“With the health of millions of people on the line, the stakes are simply too high for uncertainty across our healthcare system to persist,” the spokesperson said.

The Texas attorney general’s office didn’t respond to a request for comment.

The cases are California v. Texas, U.S., No 19-840, motion to expedite denied 1/21/20; U.S. House of Representatives v. Texas, U.S., No. 19-841, motion to expedite denied 1/21/20.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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