20 state Attorneys General +DC formally petition SCOTUS for expedited review of #TexasFoldEm

A new, if not surprising, development in the Republican Party's absurd "Texas Fold'em" lawsuit against the ACA:

Attorney General Becerra Leads Coalition Seeking Supreme Court Review of ACA Repeal Case

Friday, January 3, 2020

SACRAMENTO – California Attorney General Xavier Becerra today, leading a coalition of 20 states and D.C., filed a petition to the U.S. Supreme Court seeking review of the Fifth Circuit’s recent decision in Texas v. U.S. The decision held the individual mandate of the Affordable Care Act (ACA) unconstitutional and called into question whether the remaining provisions of the ACA could still stand, including those that protect and provide coverage to Americans with pre-existing conditions. Because this decision causes uncertainty that may harm the health of millions of Americans, as well as doctors, clinics, patients, and the healthcare market, Attorney General Becerra and his coalition are petitioning the Supreme Court to take up the case and resolve it before the end of the Court’s current term in June.  

The timing here is key. As I (and many other wonks) noted a few weeks ago when the 5th Circuti issued their ruling, there's basically two routes the case can take going forward:

  • Officially, it's supposed to go back to the judge who ruled against the ACA in the first place a year ago to "reconsider" which parts of it can be "saved"...after which it would then go back to the 5th Circuit Court of Appeals, and then to the U.S. Supreme Court. That full process could take well over a year.
  • However, it's possible that the Supreme Court will intervene and agree to take the case up instead of it going to the original judge first, which is what the defending states are now requesting. This full process...could still take up to a year, although it's conceivable that a final ruling would be issued before the election.

The Trump Administration, along with Congressional Republicans and the GOP as a whole, is clearly trying to have it both ways--they still want the ACA wiped out, of course; they just don't want it to happen unti after the 2020 election.

As U of Michigan law professor and ACA expert Nicholas Bagley put it:

...the Fifth Circuit could simply have struck down the mandate and kept the rest of the ACA intact. Had it done so, the case, for all practical purposes, would be over: no one cares whether an unenforceable instruction to buy insurance remains on the books. Instead, the court sent the case back down to a judge with a partisan reputation who had previously invalidated the entire law. He is likely to make a similarly expansive decision the second time around.

But the process will take time — perhaps another 2 years for the Fifth Circuit to decide the inevitable appeal from the judge’s do-over, followed by another high-stakes Supreme Court case. It’s hard to resist the conclusion that the delay is strategic: declaring all or part of the ACA invalid would probably have been bad for Republicans in the 2020 election. Many parts of the ACA are quite popular, especially the protections for people with preexisting conditions and the Medicaid expansion. Invalidating those parts might have provoked a political backlash. Punting to the district court gives Republicans a little more breathing room.

Unless, of course, the Supreme Court chooses to intervene at this stage. And it might do so: the validity of the ACA is an issue of national importance, and the Fifth Circuit’s decision is absurd. Plus, it takes only four votes for the Supreme Court to agree to hear a case, and the four liberal justices can probably count on Chief Justice John Roberts, who has twice turned back more substantial challenges to the law and is unlikely to embrace a lawsuit as weak as this one. The liberal justices might opt to hear the case now instead of running the risk that Trump will be reelected and will stack the Court with hard-liners.

Bagley goes on to note that the SCOTUS may not take up the case early for other reasons, however. Basically, no one knows...and there are risks either way. The state AGs defending the ACA, however, have made their decision, using reasoning which Bacerra goes on to explain:

“While the Trump Administration fights to strip access to healthcare, our coalition moves forward to defend it — because a pre-existing medical condition should never again disqualify you from receiving affordable healthcare,” said Attorney General Becerra. “This dangerous repeal case jeopardizes the lives of our families, neighbors, and millions of Americans who rely on the ACA for their healthcare. We’ll continue to fight because our communities are healthier when everyone can access affordable care — whether that means gaining coverage from Medicaid expansion or by staying on a parent’s health insurance. We’re asking the Supreme Court to swiftly resolve this repeal lawsuit for the sake of saving lives and ending uncertainty in our healthcare system.” 

The lawsuit was originally filed by a Texas-led coalition, and supported by the Trump Administration, which argued that Congress rendered the ACA’s individual mandate unconstitutional when it reduced the penalty to $0. They further argued that the rest of the ACA should be held invalid as a result of that change. California’s coalition defended the ACA in its entirety, supported by a bipartisan group of amici including scholars, economists, public health experts, hospital and provider associations, patient groups, counties, cities, and more. The Fifth Circuit held that the individual mandate is unconstitutional, but declined to further rule on the validity of the ACA’s remaining provisions. The court instead sent the case back to the Northern District of Texas to determine which provisions of the 900-page law are still valid. 

Today’s filing by California’s coalition makes clear that patients, doctors, hospitals, employers, states, pharmaceutical companies and more will be impacted by the looming uncertainty of the Fifth Circuit’s decision. It asks the Supreme Court to review the case this term. It also highlights important advancements in healthcare access made under the ACA, including:

  • More than 12 million Americans receiving coverage through Medicaid expansion;
  • Nearly 9 million individuals nationwide receiving tax credits to help afford health insurance coverage through individual marketplaces;
  • Millions of working families relying on high-quality employer-sponsored insurance plans; 
  • Important protections prohibiting insurers from denying health insurance to the 133 million Americans with pre-existing conditions (like diabetes, cancer, or pregnancy) or from charging individuals higher premiums because of their health status; and
  • Nearly $1.3 trillion in federal funding being dedicated to keeping Americans healthy and covered, including Medicaid expansion and public health dollars.

Joining Attorney General Becerra in today’s filing are the Attorneys General of Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, Michigan, Minnesota (by and through its Department of Commerce), Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia, as well as the Governor of Kentucky.

As Bacerra noted at the time, "Americans shouldn’t be jerked around when it comes to their healthcare."