Texas Fold'em: Expedited review is a huge roll of the dice either way

A few minutes ago I noted that the Supreme Court has announced that they'll be considering whether or not to expedite a review of the Texas vs. Azar (#TexasFoldEm) lawsuit at a private conference on February 21st.

What's that mean? Well, when we last checked in on the status of the case, the 20 Democratic state Attorneys General, led by California AG Xavier Becerra, had requested that the Supreme Court intervene in the ongoing federal court process and fast-track the case from where it is right now (bouncing around within the 5th Federal Circuit Court of Appeals) to instead hear the case directly and issue a final ruling on whether or not the Affordable Care Act will be struck down before the November election.

The Trump Administration and the ~20 Republican AGs, on the other hand, are pushing for the Supreme Court to delay hearing the case until after the election, claiming that there's no rush whatsoever.

Normally, you would think someone bringing a lawsuit would want their case to be heard and decided as quickly as possible. In this case, it's the plaintiffs trying to stall as long as they can...and there's a pretty obvious reason why.

As I understand it, here's the possible outcomes:

  1. SCOTUS refuses to expedite; 5th Circuit strikes down entire ACA, likely effective end of 2021
    1. SCOTUS puts stay on ruling pending their review; ACA is safe until at least 2022
      1. SCOTUS hears case in 2022
        1. SCOTUS reverses 5th Circuit's decision; ACA is saved!
        2. SCOTUS agrees with 5th Circuit's decision; ACA is struck down at end of 2022
    2. SCOTUS refuses to hear case; ACA is struck down at end of 2021
  2. SCOTUS refuses to expedite; 5th Circuit shocks everyone and only strikes down the mandate itself
    1. Suddenly it's the plaintiff states which demand SCOTUS review it
      1. SCOTUS refuses to hear case; ACA is saved!
      2. SCOTUS hears case; agrees with 5th Circuit; ACA is saved!
      3. SCOTUS hears case; reverses 5th Circuit; ACA is struck down at end of 2021/2022
  3. SCOTUS agrees to expedite, hears and decides case summer 2020
    1. SCOTUS agrees with 5th Circuit's decision
      1. SCOTUS rules immediate effect; ACA is struck down effective end of 2020
      2. SCOTUS puts stay on their ruling; ACA is struck down effective end of 2021
    2. SCOTUS reverses 5th Circuit's decision; ACA is saved!

As you can see, there's many different routes this could take. I count five possible scenarios above where the ACA is struck down and four where it's ultimately saved.

However, the timing of all of this is what's also critically important, given the potential impact on the election (which is why Trump/the GOP are so desperate for it to be delayed) as well as the outcome of the election. Here's why:

  • The GOP has been fighting like hell to either repeal the ACA or have it stricken down by the courts for ten years now...and in fact, the 10th Anniversary of the signing of the ACA into law is coming up on March 23rd, which means there's gonna be a lot of media stories and buzz about it, reminding people what the healthcare landscape looked like before it, about the 20 million people who have gained coverage from it, about the banning of discrimination against coverage of those with pre-existing conditions and so on.
  • Having the case heard and decided upon by the Supreme Court over the summer and/or fall of 2020 means the fact that Trump & the GOP are trying to tear down protections for those with pre-existing conditions, financial subsidies for over 9 million people, Medicaid expansion for around 15 million people and so on will be a top story for several months throughout the general election season.
  • If the Supreme Court does ultimately strike down the ACA, that will be a massive political disaster for the Republican Party just a few months before the election, even if the ruling is stayed for a year. The entire U.S. healthcare system will be thrown into chaos, and the GOP will have nothing to immediately replace it with.
  • Justice Ginsburg is 86. Justice Breyer is 81. I pray they both remain alive and healthy for many years to come, but from a cold, terrifying actuarial statistical POV...
    • An 86-year old woman has an 8% chance of dying within a year and a 42% chance within 5 years.
    • An 81-year old man has a 7% chance within a year and a 34% chance within 5 years.

Suffice to say that if Donald Trump wins re-election and the GOP retains control of the Senate, it's very likely that he'll have at least 5 SCOTUS justices who vote to strike the law down.

On the other hand, what happens if SCOTUS doesn't hear the case until after January 2021?

  • If the Democrats hold the House, retake the Senate and retake the White House, they can immediately pass and sign a simple law which either a) resets the mandate penalty back to at least $1.00 or which removes the underlying mandate language altogether, making the lawsuit instantly null & void.
  • If the Democrats hold the House and retake the White House, Mitch McConnell would be under tremendous pressure to agree to the above...and while he's never been one to respond to pressure from the public, in this case it would be GOP Senators who are up for re-election in 2022 who would be demanding that he take healthcare off the table.
  • If the Democrats hold the House and retake the Senate but not the White House, again, they could pass such a law and Trump would likely suddenly switch gears and sign it so that he could pretend to have "Saved Healthcare!"

If, on the other hand, the Democrats take neither the Senate nor the White House...well, as I just said, then they're likely screwed since there'd be a good chance of Trump having an anti-ACA majority on the Supreme Court.

As you can see, there's a lot of different factors at play here...and I'm sure I'm missing a whole bunch more as well.

The point is that there's as much risk in wanting the final decision to be delayed another year as there is in wanting a final, definitive answer this year...and at the very least, a quicker decision would let everyone, including the millions of patients who are living every day terrified about what their fate is going to be know where things stand.

As AG Becerra noted:

The California Department of Justice is prepared to challenge the 5th Circuit’s decision in #TexasvUS.

Let’s end the uncertainty. Americans shouldn’t be jerked around when it comes to their healthcare.

— Xavier Becerra (@AGBecerra) December 19, 2019