Richard Wolf, USA TODAY
Published 3: 50 p.m. ET Dec. 19, 2019 | Updated 11: 39 a.m. ET Dec. 20, 2019
WASHINGTON – A coalition of Democratic state attorneys general said Thursday they may ask the Supreme Court to save the Affordable Care Act – again.
The officials, led by California Attorney General Xavier Becerra, said a third trip to the Supreme Court in eight years may be necessary after a federal appeals court’s ruling Wednesday that struck down the law’s requirement that most consumers buy health insurance.
A panel of the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, sent the case back to a federal district court to decide whether other parts of the law can be saved without that requirement, called the individual mandate.The ruling leaves the law intact for now, with an uncertain future.
As a result, Becerra and other Democrats fighting to save President Barack Obama’s top domestic policy achievement said the Supreme Court should save the Affordable Care Act – something the justices did in 2012 and again in 2015.
“Most of us believe that we have to address this uncertainty as quickly as possible,” Becerra said in a conference call with several colleagues, including Kentucky Gov. Andy Beshear, a former attorney general. “We believe that it’s imperative to act swiftly.”
It would be unusual, but not unprecedented, for the Supreme Court to step in before lower courts complete their review. Becerra noted the justices have done it before, including this year, when they rejected the Trump administration’s effort to add a question on citizenship to the 2020 census.
Michigan Attorney General Dana Nessel acknowledged that the high court might prefer to let the case percolate in district and appellate courts. The justices already face a high-powered docket on issues such as abortion, immigration, gay rights and gun rights.
Most recently, they agreed to hear three cases in which congressional and state investigators seek access to President Donald Trump’s tax returns and financial documents.
Nessel said it is “more likely that they will allow the case to go back down to the district court.” Becerra agreed it is “late in the season for the court to be accepting cases” for its current term, which ends in June.
To get the case before the Supreme Court this term, the attorneys general would need to send a petition in the next few weeks and ask the justices for an expedited review. The court’s docket usually is full by the middle of January. After that, any cases granted review are scheduled for the next term, beginning in October.
The new challenge stems from the $1.5 trillion tax cut passed by Congress in 2017, which repealed the health care law’s tax on people who refuse to buy insurance. That tax was intended to prod them into the health care marketplace rather than let them seek emergency care while uninsured.
Last December, federal District Judge Reed O’Connor ruled that without the tax, the law could not survive. His ruling wasput on holdwhile it was appealed, but it threatened to wipe out insurance for 20 million people, protection for people with preexisting conditions, subsidies for low-income people, Medicaid expansions in many states, coverage for young adults up to age 26 and more.
Wednesday, the appeals court agreed that the individual mandate is unconstitutional “because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power,” Judge Jennifer Walker Elrod wrote for the majority.
Rather than strike down the entire law, as O’Connor did, the panel sent the case back to district court for “additional analysis” on whether the individual mandate can be severed from the rest of the statute. For now, consumers will not be affected by the ruling.
Judge Carolyn Dineen King dissented from the ruling, calling questions about the legality of the mandate without a tax “purely academic.”
“The district court’s opinion is textbook judicial overreach,” she wrote. “The majority perpetuates that overreach and, in remanding (the case to the lower court), ensures that no end for this litigation is in sight.”
In sending the case back, the panel noted the Trump administration’s changing positions in the case.
The Justice Department originally sought to strike down only the individual mandate, then joined Texas and other “red” states seeking to kill the entire law. Finally, it suggested such a ruling might be applied only in the 18 states challenging it.
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