A coalition of Democratic attorneys general defending the Affordable Care Act against a Republican state challenge has asked the U.S. Supreme Court to review an appeals court decision that struck down the requirement that most Americans buy health insurance.
The 5th Circuit Court of Appeals on Dec. 18 affirmed a federal judge's ruling that the so-called individual mandate is unconstitutional and remanded the case back to lower court to determine what other provisions of the healthcare law must fall with it. One of the appellate judges dissented from the decision.
In its Supreme Court petition filed Friday, the Democratic coalition urged the high court to immediately review the judgment in Texas v. US because "remand proceedings contemplated by the panel majority would only prolong and exacerbate the uncertainty already caused by this litigation."
The coalition asked the Supreme Court to resolve the case before its current term ends in June. It wrote that the U.S. House of Representatives, which is also defending the ACA in the lawsuit, would concurrently file a petition. Legal experts say it's unlikely the Supreme Court would agree to hear the case at this stage.
"The Affordable Care Act has been the law of the land for a decade now and despite efforts by President Trump, his administration, and Congressional Republicans to take us backwards, we will not strip health coverage away from millions of Americans," New York Attorney General Letitia James, a member of the coalition, said in a statement.
Republican state attorneys general have sought to have the entire Affordable Care Act invalidated, including popular provisions that protect people with pre-existing health conditions and prevent insurers from charging more for coverage based on gender or health status. The Trump administration ultimately supported the states' legal theory.
The Affordable Care Act also includes provisions to expand Medicaid and allow young adults to remain on their parents' health insurance, and those could also be at risk along with hundreds of other provisions. One analysis by the left-leaning Urban Institute concluded that 20 million people would lose their insurance if the ACA were toppled.
U.S. District Judge Reed O'Connor in Texas ruled in December 2018 that individual mandate became unconstitutional when Congress reduced its penalty to $0. He reasoned that the mandate is essential to the rest of the ACA and invalidated the entire law as a result.
The majority on the 5th Circuit panel agreed that the mandate must go but was reluctant to determine which provisions should fall with it. It asked the lower court to re-do its initial analysis with a "finer-toothed comb."
Robert Henneke, general counsel at the Texas Public Policy Foundation and lead counsel for the individual plaintiffs in the lawsuit, said the Blue states' decision to seek an expedited Supreme Court review is political. The next U.S. presidential election takes place in November.
"This is a tactic that reeks of desperation in showing how eager the Democrats are to move the narrative away from the Medicare for All discussion … Their reason for the timing of these filings has more to do with the political calendar than the merits of the case," he said.
The Democratic states argued in their petition that the lower courts are wrong. Referencing the dissenting opinion written by Circuit Judge Carolyn King, they insisted the individual and state plaintiffs lack standing, defended the individual mandate's validity and called out what they say is a flawed approach to determining whether and which other provisions of the law are also illegal.
They warned the Supreme Court that the uncertainty caused by the decision would create problems for individuals, state and local governments and health insurance companies.
"The actions of the lower courts have cast doubt on hundreds of other statutory provisions that together regulate a substantial portion of the nation's economy," they wrote. "States, health insurers, and millions of Americans rely on those provisions when making important—indeed, life-changing—decisions."
