President-elect Donald Trump has made repealing the Affordable Care Act and adding conservative justices to the U.S. Supreme Court hallmark issues of his campaign. But court watchers and healthcare legal experts say it's too soon to tell how healthcare litigation at the high court could be affected by his administration.
When Trump is inaugurated in January, he will have at least one open slot on the nine-justice bench due to Justice Antonin Scalia's death in February 2016. While that single vacancy won't upend the current majorities that have upheld abortion rights, there is a possibility Trump could have even more seats to fill in the coming years. Two members of the court's liberal wing—Justices Ruth Bader Ginsburg, 83, and Stephen Breyer, 78—as well as perennial swing voter Anthony Kennedy, 80, are all aging and could contemplate retirement during Trump's administration.
Trump already has a list of 21 potential candidates for the Supreme Court bench, including Sen. Mike Lee (R-Utah) and his brother Thomas Rex Lee of the Utah Supreme Court as well as numerous other judges from state and federal appeals courts. But the Republican president-elect has not limited himself to that list and the selection process could be long and arduous.
Typically, the U.S. Justice Department, White House counsel's office and American Bar Association are all involved in an intense background investigation on potential nominees. The eventual nominee is typically then subjected to intense scrutiny from the Senate Judiciary Committee and eventually the entire Senate floor.
But that was the past, according to Marcia Greenberger, co-president of the National Women's Law Center, and it's no indication of how Trump or the conservative Senate majority will proceed now.
“Exactly how this administration and this Senate will approach filling the vacancy is another one of those questions that is hard to answer, especially because of the way the Republicans in the Judiciary Committee and Senate majority treated Merrick Garland's nomination,” she said.
Garland, a judge on the U.S. Court of Appeals for the District of Columbia Circuit who is widely respected by members of both parties, has been awaiting Senate consideration since March. Republican senators vowed not to hold hearings on his nomination, saying the next president should nominate Scalia's successor.
Most likely, a Trump Supreme Court nominee wouldn't don his or her robes until the next court term in October, leaving some healthcare issues such as nursing home arbitration agreements in the hands of the current eight justices.
But Trump's plans for the ACA adds another wrinkle to the healthcare legal world. If Trump and the GOP-controlled House and Senate choose to repeal the overarching healthcare reform law, many high-profile healthcare cases such as the House of Representatives' case challenging portions of the law's funding will simply disappear.
“In truth, there's an extraordinary amount of uncertainty right now,” Greenberger said. “That uncertainty can be destabilizing.”
Trump could also choose to stop litigating ACA-related cases and stop enforcing portions of the law, according to Tim Jost, a law professor at Washington and Lee University.
“If the Trump administration simply refuses to enforce or implement parts of the law that are still the law, that could lead to litigation,” he said. “Maybe some of that would eventually lead to the Supreme Court.”
Although a repeal could negate some legal challenges, it's likely that the slew of litigation over the ACA's controversial risk-corridor program will soldier on, as insurers are attempting to wrest allegedly overdue payments from the federal government.
There could be new litigation over repealing the ACA as well, Greenberger said. Individuals could sue insurers over changes in their coverage and who is responsible for providing that coverage. States could sue the federal government for failing to fulfill commitments under the ACA. Insurers and hospitals could find themselves at odds over claims responsibilities.
“There are so many moving parts and parties affected by healthcare rules, regulations and requirements, Medicare and Medicaid and the Affordable Care Act layer on top of it, and constitutional right to privacy issues,” Greenberger said. “It's difficult to predict precisely what that litigation would be in the absence of knowing what changes there will be.”