Texas Fold'Em: The odds of a final decision on the fate of the ACA being made before the election just dropped to zilch.

Back in March I noted that while the U.S. Supreme Court has indeed agreed to hear the Texas Fold'Em lawsuit to strike down the Affordable Care Act (aka "Texas vs. Azar", aka "Texas vs. U.S.", aka "CA vs. TX") sometime this fall, the odds of actually getting a final decision in the case from SCOTUS before the November election (or even before either Trump or Biden are sworn into office in January) is extremely unlikely:

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

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

Well, we can tighten this tweet up a bit more now: The official Supreme Court session schedule has been updated with the October hearings. Let's take a look!

  • Monday, October 5: Carney v. Adams; Texas v. New Mexico
  • Tuesday, October 6: Rutledge v. Pharmaceutical Care Management Association; Tanzin v. Tanvir
  • Wednesday, October 7: Google v. Oracle America; Ford Motor Co. v. Montana 8th District Court/Bandemer
  • Monday, October 12: LEGAL HOLIDAY
  • Tuesday, October 13: U.S. v. Briggs; U.S. v. Collins; City of Chicago v. Fulton
  • Wednesday, October 14: Torres v. Madrid; Pereida v. Barr

Notice anything missing? Yep, that's right: Texas v. Azar (or CA v. TX, as I believe it's now called) isn't listed. And as the Supreme Court only actually hears arguments for five days in October, that means Texas Fold'em won't be heard until November 2nd at the earliest.

So what happened? Apparently SCOTUS had to cancel a bunch of oral arguments back in March/April due to the COVID-19 pandemic, pushing a lot of cases into the fall, which includes a bunch of these. It's conceivable that the arguments will happen either on November 2nd or even the 3rd (Election Day itself!), but probably not...and again, while that would be a source of high drama, the actual ruling by the Supreme Court is very unlikely to come out until next spring regardless.

As I noted back in March: 

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 Nicholas Bagley noted last spring...

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