The Trump administration came into office with its top legislative priority clear: Repeal the Affordable Care Act. It failed. Then, when a group of Republican states tried to throw out Obamacare through a lawsuit, the administration agreed that a key part of the law was unconstitutional.
But now that defenders of the law have asked the Supreme Court to settle the case quickly, the president’s lawyers say they are in no particular hurry. The case, which seeks to invalidate the entire health care law, can wait for the lower courts to consider certain questions more carefully, they said in a filing to the Supreme Court on Friday. There is no “present, real-world emergency,” the brief says, that would require the court to rush the case’s progress.
The case argues that changes made to the Affordable Care Act in 2017 make its requirement that most Americans obtain health insurance unconstitutional — and that the provision is so essential to the health care law that the rest of it should be invalidated as well.
The case could have major political implications because the results sought by the Republican states and the Trump administration would cause substantial disruptions. According to estimates from the Urban Institute, around 20 million more Americans would become uninsured because of the elimination of the law’s coverage expansions and protections for Americans with pre-existing health conditions.
The erasure of other provisions of Obamacare would rattle the health system, eliminating consumer protections for health insurance customers; increasing the cost of prescription drugs for Medicare beneficiaries; weakening penalties for health care fraud; reshaping government payments to hospitals, doctors and insurance companies; and undermining an approval pathway for generic versions of biologic drugs, among many changes.
The Republican states on Friday agreed with the Department of Justice. “The lawfulness of the act is undoubtedly a matter of the utmost national importance, but the current petitions do not justify immediate, emergency review by the court,” said their brief, brought by the attorney general of Texas and elected officials in 17 other states.
So far, the Trump administration and the Republican states have been winning in the courts. A Federal District Court judge in Texas agreed with the litigants that the individual mandate was unconstitutional and that the entire law should be overturned along with it.
Last month, a three-judge panel from the Fifth Circuit Court of Appeals ruled that the so-called individual mandate was unconstitutional, but declined to rule on what should happen to the rest of the health law, asking the lower court to devote more analysis to the question. The Texas court’s ruling has been delayed until the case is resolved, and the Trump administration has said it will continue to administer the Affordable Care Act in the meantime.
The litigants’ chances in the Supreme Court are unclear. The five justices who ruled to uphold the Affordable Care Act after an earlier challenge to the individual mandate, in 2012, remain on the court.
A group of Democratic-led states and the House of Representatives, which entered the case to defend the law, have asked the Supreme Court to rule right away, rather than letting the case go back to the lower court and then back to the Fifth Circuit for another look. Their brief, filed last week, emphasized the major stakes of the case, and argued there were negative consequences from the uncertainty caused by the delays. There may also be political reasons for Democratic politicians to want the case on the front burner this year: The legislative assault on the Affordable Care Act in 2017 became a major theme of many successful Democratic congressional campaigns in 2018.
The Supreme Court typically waits to take cases until the lower courts have finished their work. But it could accept the case at this stage if four justices agree it is ripe for legal review. It would take a five-justice majority for the case to be considered on the “expedited basis” that would set up a ruling by the end of the court’s current session in June — before the 2020 election.