The 2-1 decision by the 5th US Circuit Court of Appeals likely pushes any Supreme Court action on Obamacare until after the 2020 election but again thrusts the issue of health care into the forefront of the campaign — and extends the uncertainty surrounding the future of the landmark law, long a political target for President Donald Trump and other Republicans.
The Fifth Circuit remanded the case back to the District Court of conservative activist Judge Reed O’Connor, who had struck down the entirety of “Obamacare” based on the specious argument that the entire law hinged on the individual mandate, which Republicans sabotaged with the repeal of the individual mandate in their 2017 tax bill. The Fifth Circuit instructed Judge O’Connor that he must consider whether the individual mandate can be separated from the other provisions of the law [i.e., severability].
This will result in a lengthy delay of legal wrangling in the trial court, back the Fifth Circuit on appeal, and eventually to the Supreme Court in a couple of years, which would leave “Obamacare” in a legal limbo of uncertainty. It also allows Republicans to continue to engage in their years-long campaigning against “Obmacare” without ever offering a serious or viable Republican alternative.
On Friday, Democrats called “bullshit!” on the Fifth Circuit’s obviously politically motivated decision. Amy Howe at SCOTUSblog reports, House, blue states ask justices to uphold Affordable Care Act (excerpt):
Today the states and the House of Representatives filed two petitions asking the Supreme Court to weigh in on the constitutionality of the mandate immediately, as well as the ACA’s viability if the mandate is struck down, without waiting for the lower courts to act. Both petitions portray Supreme Court review as inevitable. The Supreme Court, the states note, “normally grants certiorari when a lower court has invalidated a federal statutory provision on constitutional grounds.”
[T]he justices need to intervene now, the states and the House emphasize, because of the “paralyzing uncertainty” about the ACA that the 5th Circuit’s decision has created. Families will have more trouble making decisions about what jobs to take or whether to start a family based on their access to health insurance, the states and the House explain, while doubt about the future of the ACA could also affect health-insurance companies as they decide whether to offer insurance on the online marketplaces in each state and, if so, at what rates. “States,” the House adds, “must live with, and plan for, the possibility that they will lose billions of dollars in Medicaid subsidies” if the ACA is struck down. “The debilitating effects of this massive uncertainty will likely persist for years if the Court does not grant review now,” the House continues, because the case otherwise likely would not come back to the Supreme Court until 2022 – at which point the justices would consider the same questions that they are being asked to decide now.
In separate motions, the states and the House ask the justices to expedite consideration of their petitions, with the ultimate goal of having the cases – if granted – briefed and argued this term. They propose two possible briefing schedules for the petition, which are best described as short and shorter. Under one schedule, the briefs in opposition would be due on February 3; the case would be distributed to the justices on February 5; the reply brief would be filed on February 12; and the justices would consider the case at their February 21 conference, with oral argument to follow in late April or “at a special sitting in May 2020.” Under the second schedule, the briefs in opposition would be due, and the case would be distributed to the justices, on January 21; the reply brief would be filed on January 23, and the justices would consider the case at their January 24 conference, with oral argument in late April.
The states and the House also asked the justices to fast-track consideration of their motion to expedite, by directing the respondents to file any opposition to the motion by January 7 and considering the motion at their January 10 conference. The court’s response to this request could provide at least an initial hint at how the justices view the petitions by the states and the House.
Should the Supreme Court grant these motions, this appeal will be heard this term with a decision likely to be announced during the last week of June, only weeks before the Democratic National Convention in July. It will healthcare among the top issues to be argued in the 2020 election.