Richard Wolf, USA TODAY
Published 9: 52 a.m. ET Jan. 21, 2020 | Updated 1: 26 p.m. ET Jan. 21, 2020
WASHINGTON – The Supreme Court refused Tuesday to decide on a fast-track basis the fate of the landmark Affordable Care Act after a federal appeals court ruled that its central health insurance mandate is unconstitutional.
By refusing to step in, the justices probably blocked the third Supreme Court test of the controversial health care law from an election-year docket teeming with major cases on abortion, immigration, gun control, gay rights, freedom of religion and subpoenas seeking President Donald Trump’s tax and financial records.
This would have been the third time in eight years that the justices considered the 2010 law, not including challenges to parts of the law, such as its requirement that women receive free coverage for contraceptives. That rule will come before the high court this spring, also for the third time.
A panel of the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, ruled last month that the government cannot force most consumers to buy health insurance because Congress eliminated the tax penalty used to enforce the requirement in 2017. The panel sent the case back to a federal district court to decide whether other parts of the law can be saved without the so-called individual mandate.
The appeals court ruling left the law intact but facing an uncertain future. A coalition of predominantly Democratic states led by California, along with the Democratic-led House of Representatives, asked the justices to step in quickly so the case could be heard during this Supreme Court term, which ends in June.
“The lower courts’ actions have created uncertainty about the future of the entire Affordable Care Act, and that uncertainty threatens adverse consequences for our nation’s health care system, including for patients, doctors, insurers and state and local governments,” California Solicitor General Michael Mongan said in seeking the quick Supreme Court review.
The Justice Department said the law is in no imminent danger and urged the justices to stand down and let the district court do its work.
“Petitioners’ submission, at bottom, is that the vitality of the ACA’s myriad provisions is too important to be left unresolved,” Solicitor General Noel Francisco wrote the justices. “But definitive resolution of that issue will be facilitated, not frustrated, by allowing the lower courts to complete their own consideration of the question.”
The high court rescued President Barack Obama’s signature domestic policy achievement by a single vote in 2012 after an extraordinary, three-day oral argument. The justices saved it again in 2015 when tax credits critical to the law’s success were challenged.
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.
In December 2018, federal District Judge Reed O’Connor ruled that without the tax, the law could not survive. His ruling was put on hold while 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.
The appeals court panel agreed, 2-1, 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. In doing so, 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 Republican-led states seeking to kill the entire law. Finally, it suggested such a ruling might be applied only in the 18 states challenging it.
Dissenting Judge Carolyn Dineen King called the appeals court ruling “textbook judicial overreach” that “ensures that no end for this litigation is in sight.”
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