Texas Fold'Em: SCOTUS *WILL*consider the case this year, but...

About a month ago I wrote a flow chart, of sorts, explaining the different potential permutations of the absurd Texas vs. Azar (aka Texas vs. U.S., aka #TexasFoldEm) lawsuit which threatens the entire Affordable Care Act. Since then there's been a few more developments (actually, a few more non-developments), the timing of which change the potential landscape a bit.

Sometime this morning the Supreme Court is expected to announce whether they'll intervene in the case:

Hey everyone! The Supreme Court may announce at at 9:30am today its decision about whether to take the big Affordable Care Act case.
If it says yes, it'll hear argument in the fall (around the election!). If it says no, it'll take another three years or so to get a final answer.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

Here's the catch, though:

If yes, they'll HEAR the case in the fall...but when would they announce their *decision*?

— Charles Gaba (@charles_gaba) March 2, 2020

spring 2021

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

In other words, one way or another, we won't know the ultimate fate of the Affordable Care Act until after the 2020 election is over.

Stay tuned...

REMINDER: The #TexasFoldEm lawsuit "case" in a nutshell boils down to:

  • In 2017, Congressional Republicans changed the ACA's Shared Responsibility Requirement tax (aka the Individual Mandate Penalty) from $695 or 2.5% of income to $0 or 0.0%.
  • Since the federal financial penalty for not having ACA-compliant healthcare coverage (or receiving an exemption) is now $0, they claim this makes the requirement itself unconstitutional.
  • Since they claim the requirement is unconstitutional, they further claim that this makes the entire ACA unconstitutional.
  • Therefore, they're demanding that the entire law be struck down.

No, it makes zero sense, and that's not just me saying it...pretty much every legal and Constitutional expert who's chimed in across the political spectrum has said it's a nonsense suit...and yet here we are.

UPDATE 9:35am: Here we go...

The ACA case was granted. It will be heard this coming term.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

#SCOTUS grants petition filed by California & other states, as well as petition filed by Texas on whether individual mandate can be separated from rest of ACA. Argument is likely in the fall, w/decision to follow by June 2021.

— Amy Howe (@AHoweBlogger) March 2, 2020

Hmmm ok, that's a few months later than Bagley figured, but it doesn't really change anything. The bottom line is that the Supreme Court will hear the case before the election but won't decide the case until after the election.

The timing of this is critically important.

If the Democrats flip the Senate and retake the White House, I believe they could pass and sign a bill as soon as January 20th, 2021 resetting the mandate penalty back to $695/2.5%...or even as little as $1.00 if they wanted to. Doing that should instantly make the entire case null and void...and while I'm not an expert on how the filibuster or reconciliation works, I think they could do so with as few as 50 Senate votes (assuming a Democratic Vice-President acting as a tie-breaker). The 2017 tax bill which zeroed out the penalty was passed without 60 Senate votes, after all.

Alternately, they could pass a bill stripping out the mandate language itself, although I think that would require 60 votes.

As for the electoral impact on the election, well, Nicholas Bagley has some thoughts on that as well:

We don't know when the case will be heard. Maybe Oct, maybe Nov. But the difference could be huge politically. On the eve of the election, Trump won't want public attention drawn to his argument that the courts should end protections for people w/ pre-existing conditions.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

The parties may try to wrangle over a proposed date for argument, depending on whether the case is most likely to be scheduled in Nov or Oct. But they can't wrangle too brazenly: they can't say "hear the case early/late because it's to our political advantage."

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

Regardless of the date of oral argument, the Democratic candidate will -- and should! -- use this case to bludgeon President Trump at every turn. For better or worse, health care is the #1 issue for most voters. https://t.co/Ou4jHa16RS

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

And this lawsuit is the cleanest, easiest way to explain to voters that the Trump administration is lying through its teeth when it says that it supports protections for people with preexisting conditions. https://t.co/eOFGChyUzl

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

Every debate, every stump speech, every commercial, for eight months. "The Trump administration is asking the Supreme Court to rip away your protections when you get sick." And to do so in the midst of a coronavirus pandemic too! Politically, it's a gift to Democrats.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020