by Jordan Roberts
Former Director of Government Affairs, John Locke Foundation
Yesterday, the Supreme Court said that it would take up California v. Texas, a case regarding the constitutionality of the Affordable Care Act (ACA), or Obamacare. For weeks it has been unclear whether the Court would take up the case. Now the case has been placed on the docket, and there could be oral arguments before the 2020 election and a decision sometime next year.
How did we get here?
After Congress passed the Tax Cuts and Jobs Act, the individual mandate penalty was reduced to zero. Following this piece of legislation, 20 Republican state attorneys general, governors, and individuals filed suit alleging that because the individual mandate penalty was no longer a tax, it is therefore unconstitutional, and therefore the entire ACA is unconstitutional. A federal judge in Texas agreed with the plaintiffs and ruled the entire law unconstitutional.
On appeal, the Fifth Circuit agreed with the Texas judge that the individual mandate was unconstitutional, but stopped short of declaring the rest of the law unconstitutional. The Appeals Court sent the decision back to the Texas judge for further consideration of whether the entire law should be unconstitutional.
Katie Keith of Health Affairs explained what happened next:
A coalition of Democratic attorneys general and governors, led by California, and the House appealed the Fifth Circuit’s decision to the Supreme Court. They posed three questions, urging the Court to address 1) whether the plaintiffs have standing to challenge the individual mandate; 2) whether the penalty-less mandate is now unconstitutional; and 3) whether the mandate (if found to be unconstitutional) is severable from the rest of the ACA.
Citing the potential for massive disruption and prolonged uncertainty, California and the House had asked the Court for expedited consideration of their cert petitions, with the goal of having the case heard during the Court’s current term (with a decision issued in June 2020). This request—which would have required the vote of five Justices—was opposed by the plaintiffs and the Trump administration and denied on January 21.
The Court then considered the cert petitions on a non-expedited basis. Briefing continued, and the appeals were initially scheduled for the Court’s private conference on February 21 before being relisted to the February 28 conference.
Now we will wait to see when the Supreme Court schedules oral arguments for this case. A decision, in this case, would likely not be released until sometime in 2021.
As a political matter, this decision by the Supreme Court puts the focus squarely back on the ACA during the 2020 presidential election. Health care is already one of the top issues for voters. Now there will be a not-so-new debate over the ACA taking place as other ideas of public options and Medicare for All are debated by politicians and voters.
If the Supreme Court were to strike down the law, it would be years before any meaningful changes would take place. Any action from the current President or current Congress would take to roll out.
To move our country forward towards a more functional health care system, the repeal of the ACA is a necessary step. Legislative action through Congress would be the preferred method. But given the longevity and scope of the law, careful consideration will be needed for how to unwind the law whether it is struck down by the Court or repealed by Congress. This will be an important series of events to watch regarding the future of America’s health care system.