In more than 20 cases over the last three years, the Trump administration has asked the Supreme Court to intervene early or in extraordinary ways. Yet in the pending Affordable Care Act case in which the administration has asked a federal court to invalidate the entire ACA, the administration insists there is no rush whatsoever. 

The government’s position on the timing of the ACA case strikes me as hypocritical. It also happens to expose some of the many flaws in the government’s attempt to use the courts to demolish the ACA. And the Supreme Court should put a stop to those arguments now because an important federal statute and a billion dollar industry are at stake.

Typically, the Supreme Court does not hear a case until after a court of appeals has issued a decision (and usually after several courts of appeals have issued decisions). The Court also rarely puts on hold lower court decisions.

In a wide range of cases, however, the Trump administration has asked the Court to intervene early or extraordinarily. As Steve Vladeck wrote about in the Harvard Law Review, the administration asked the Court to stay lower decisions involving the travel ban; the ban on transgender individuals serving in the military; the ban on individuals applying for asylum outside of ports of entry; the ban on individuals applying for asylum who did not seek protections from third countries, among other policies. (The Court granted some of these requests.) The administration also asked the Court to hear cases involving the Deferred Action for Childhood Arrivals program, the ban on transgender individual serving in the military, and other policies before any court of appeals ever issued a decision in the cases. Two days ago, the administration asked the Court to stay a lower court ruling that enjoined the administration’s public charge rule.  All of these cases, the administration insisted, involved extraordinary circumstances justifying the Court’s early intervention.

But the administration now maintains that there is no “current exigency that warrants accelerated” review in the ACA case even though a federal court of appeals has already issued a decision in the case and even though that decision invalidated one of the provisions in the ACA.  A district court had previously concluded that the Republican-controlled Congress’s amendments to the ACA made the minimum-coverage requirement unconstitutional and that, as a result, the rest of the ACA had to be struck down. (The minimum-coverage requirement subjected certain individuals who did not purchase health insurance to a tax penalty. The Republican-controlled Congress reduced the tax penalty to zero dollars.) The U.S. Court of Appeals for the Fifth Circuit agreed with the district court that the minimum-coverage requirement is unconstitutional, but deferred a decision on whether the rest of the ACA had to be struck down, asking the district court to perform its analysis once again. (Given the district court’s last decision invalidating the entire ACA, there is little doubt that it will again find that many, if not all, of the ACA’s important provisions have to be struck down.)

The House and some Democratic-led States have now asked the Supreme Court to step in to resolve the ACA’s fate before those further proceedings occur. There are some obvious reasons why the Court should do so: A court of appeals has declared a provision of federal law unconstitutional; its reasoning is based on the frivolous claim that the Republican-controlled Congress strengthened the individual mandate, rather than making it a practical nullity; and the fate of the entire Affordable Care Act and the health insurance market hang in the balance. (Marty Lederman expanded on these points in this must-read post.)

The government’s arguments for why the Court should wait to hear the case also happen to underscore why the Court should hear the case now—because the government’s legal claims are so frivolous and the stakes of the case so great. In particular, the government’s arguments on timing expose some of the many flaws in the government’s legal case against the ACA, including its arguments about why this lawsuit can even be brought in the first place.

Plaintiffs suing in federal court must establish that the challenged government conduct injures them in fact. Yet the government simultaneously maintains that the court of appeals decision invalidating the minimum-coverage requirement is of no practical consequence whatsoever and that the minimum-coverage requirement was significant enough to harm individuals, which is what allowed the individuals to challenge the requirement in federal court. Either the minimum-coverage requirement is not so meaningless and harms the plaintiffs, or a decision wiping the requirement off the books is meaningless. Both of these things are not likely to be true. And if this case has no business in the federal courts, then the Supreme Court should say so now, rather than allowing the courts to spend additional years on it, particularly when those additional years will (effectively) hold the health insurance industry hostage and have additional costs.

The government’s suggestion that the ACA can continue to exist without the minimum-coverage requirement also undermines the government’s reasons for why courts should invalidate the entire ACA if they conclude the minimum-coverage requirement is unconstitutional. The government is arguing that courts should strike down the rest of the ACA because the ACA is unworkable without the minimum-coverage requirement.

However, as a result of the court of appeals decision, the ACA will continue to operate without the minimum-coverage requirement while the district court and then the court of appeals determine whether the rest of the ACA must be struck down.  That creates a problem for the government’s proffered reasons for the Court to delay the case: The government cannot credibly argue both that the ACA is unworkable without the minimum-coverage requirement and that invalidating the minimum-coverage requirement does not create an exigency warranting the Court’s review.

Given that the government has, until now, argued that the ACA is unworkable without the minimum-coverage requirement, the Court should discount the government’s last-ditch efforts to delay the Court hearing the case.  That is particularly true given the utter indefensibility of the government’s position on severability: In 2017, Congress zeroed out the tax penalty for failing to purchase health insurance and left the rest of the ACA in tact. That more than signals Congress’s intent and understanding that the ACA could and should continue to exist without any kind of payment for failing to purchase health insurance.

An additional reason for expedition is the nakedly partisan nature of the government’s attempt to delay the case until after this term (and frankly, the court of appeals attempt to delay the case as well). If the Court agreed to hear a case about the fate of the entire ACA this term, that would thrust administration’s attempted demolition of the ACA in court into the presidential election. But that is not a legally relevant reason to delay the case, and the Court should not give in to the government’s hypocritical, partisan play.

Moreover, as Marty Lederman pointed out, there was no reason for the court of appeals not to decide the severability question—and to say, now, whether the rest of the ACA was invalid. The court of appeals made no new law on the severability issue, and the question is ridiculously easy. Its reasonable to wonder, therefore, if its decision not to decide the severability might have been driven by its own desire to delay the case –until after the presidential election, and perhaps until after the Supreme Court’s composition changes in a way that might make the Court more favorably inclined to invalidate the entire ACA. (Such as, for example, if a re-elected President Trump replaced one of the more progressive Justices.)

@LeahLitman

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