Chief Justice John Roberts this morning, before walking over to the U.S. Senate to preside over the Senate impeachment trial, took part in handing Republicans the gift they wanted before this year’s election. Amy Howe at SCOTUSblog reports, Court will not fast-track ACA petitions:
Today the Supreme Court issued orders from the justices’ private conference last week … this morning’s order list nonetheless contained big news: The justices denied motions to fast-track consideration of petitions filed by the U.S. House of Representatives and a group of blue states, asking the Supreme Court to weigh in on the constitutionality of the Affordable Care Act’s individual mandate. In December, the U.S. Court of Appeals for the 5th Circuit agreed with a federal district court in Texas that the mandate is unconstitutional now that there is no longer a penalty for failing to buy health insurance, but the court of appeals sent the case back to the district court for it to consider what parts, if any, of the ACA might still survive. Earlier this month the House and the states came to the Supreme Court, telling the justices that the question is too important to wait for the district court and then the court of appeals to act again before the justices finally have their say. Briefs were filed by the individuals and states challenging the mandate, as well as by the federal government, which has declined to defend the ACA, countering that there is “no emergency” that would justify a departure from the court’s normal procedures, and today the justices turned down the motions to fast-track the petitions.
The denial of the motions means that the responses to the petitions will not be due until February 3, unless that date is extended, and the justices will not consider the petitions until a conference in late February or early March – too late for the court to hear oral argument this term even if the petitions are granted. The denial may reflect a lack of enthusiasm among some justices for tackling such a contentious issue at the end of a term that is already packed with blockbuster cases; it also means that the status of the ACA will remain up in the air throughout the 2020 election season.
Exactly the gift Republicans wanted so they can continue to gaslight Americans about their attempts to take away their health care guarantees under “Obamacare” in the election.
The Washington Post editorialized earlier, Republicans, end this bizarre, belated crusade against Obamacare (excerpt):
Legal experts from across the spectrum denounced District Court Judge Reed O’Connor’s ruling. The 5th Circuit should have joined the chorus. Instead, the appeals court agreed with much of the decision, striking the individual mandate. Its only pushback was to instruct Judge O’Connor to reevaluate whether the rest of the law must go, too, suggesting that only parts of it could be struck.
From here, Judge O’Connor must redo his analysis, per the 5th Circuit’s order. But the 5th Circuit’s decision will also certainly be appealed to the Supreme Court.
It is unclear whether this is even a case courts should hear, given that a zeroed-out tax imposes no costs on the challengers. It is also possible that Congress may establish a tax that it declines to collect, contrary to the challengers’ assertion. But even if the justices concur with the 5th Circuit on these questions, they have no cause to strike any of the rest of the law along with the mandate.
When Congress in 2017 zeroed out the individual-mandate penalty but left the rest of the law intact, lawmakers expressed their intention to defang only one specific provision; there were not enough votes to undo any more — even those provisions previously seen as related to the mandate. It defies all logic to suggest that lawmakers did not intend for the law to stand without the mandate — after they allowed the law to stand without the mandate. Though the law would function better with the mandate in place, it has not unraveled following the mandate’s effective repeal.
The high court should put an end to this disheartening episode in judicial brazenness.
The high court just declined to do so, to the benefit of Republicans’ campaign strategy.
Americans’ “Obamacare” protections will remain hanging in the balance for maybe another two years as this case wends its way back through the lower courts to the U.S. Supreme Court.