“I was the person who saved Pre-Existing Conditions in your Healthcare,” he tweeted, falsely, on Jan. 13. By putting off a decision in the case until after the election, the court avoided making the administration’s deeply unpopular campaign to demolish the ACA a centerpiece of the presidential race. Given that the court has frequently expedited or taken other extraordinary steps in cases of similar import, its refusal to do so in this instance looks an awful lot like an effort to help the Republican Party.
Indeed, delaying a decision is significantly more helpful to the president than an expedited ruling in his favor would be; a decision endorsing the administration’s arguments, and invalidating the ACA, would expose the president’s false statements about health care and his own lack of a health-care plan.
The current case that could determine the future of health insurance in the United States began with a hostile amendment to the ACA — passed by the Republican-controlled Congress in December 2017, after Republicans had repeatedly tried and failed to repeal the ACA outright. The amendment reduced to zero the famously controversial “individual mandate” penalty imposed on people who declined to buy health insurance.
Texas and other Republican-led states promptly filed a suit, arguing that Congress’s amendment to the ACA had rendered unconstitutional not only the individual mandate but also the whole law. Their argument was that the mandate penalty was originally justified as a tax; that was the reason the court narrowly upheld the ACA, in 2012. But now that the penalty was zero, it had become impossible to characterize the penalty that way. Instead, the states claimed, the Republican-controlled Congress’s amendment had transformed the mandate into a free-standing obligation to purchase health insurance (which the court has declared Congress lacks the power to impose).
The states made this argument even though Congress explicitly said it was doing away with the mandate when it killed the penalty.
More troubling still, Texas and the other states argued that if the mandate were unconstitutional, then so was the whole ACA, because the mandate is central to the law. Trump’s Justice Department supported these states’ efforts, even though the agency generally defends federal law against such challenges.
A federal district court in Texas agreed with the administration and invalidated the entire ACA. Then, in December, the U.S. Court of Appeals for the Fifth Circuit agreed with the district court’s conclusion that the mandate is now unconstitutional. The appeals court declined, however, to decide whether the rest of the ACA had to be invalidated — ordering the district court to analyze that question once again. Still, it refused to rule out the possibility that the entire ACA should be invalidated.
The Democratic-led House of Representatives, together with a coalition of Democratic-led states, asked the Supreme Court to review the case now, before the district court and court of appeals decide whether the entire ACA is invalid. The House and those states also asked the court to expedite a decision about whether to hear the case — to ensure the issue would be resolved before the end of this term, in July 2020.
On Tuesday, however, the court declined that request. That means that if the court hears the case, it will not be until October 2020 at the earliest, pushing the final decision about the ACA until well past the November election.
You could all but hear the Republican Party sigh with relief. The Trump administration’s position on the ACA — that all of its reforms, including the expansion of Medicaid and the protections for people with preexisting conditions, should be undone — is so unpopular that some Republican senators (most notably the late John McCain of Arizona) voted against it. The administration’s efforts to demolish the ACA also mobilized the public against the Republican position.
By putting off the administration’s efforts to undo the ACA until after the election, the court made further mobilization less likely. And the court made it easier for the president to continue to lie and obfuscate about his health-care policy (or non-policy) during his reelection campaign.
The court’s decision not to expedite its consideration of the ACA case is especially odd given its repeated decisions to take extraordinary steps in other cases of national importance. Coincidentally or not, this has happened several times when a lower court decision has gone against the Trump administration. Several times, the court has taken the unusual step of staying lower court decisions while litigation proceeds. By issuing such stays, the court has allowed the administration to implement an early version of the travel ban that largely prohibited nationals of several Muslim-majority countries to enter the United States; to enforce a ban on transgender people serving in the military; and to carry out a policy that prohibited individuals from seeking asylum in the United States if they had not first sought asylum from other countries.
The court also agreed to hear several cases on unusual timelines, at the urging of the Trump administration. Those cases included the pending legal challenge to the president’s rescinding of the Deferred Action for Childhood Arrivals program, as well as the president’s challenges to congressional and state subpoenas to his financial accounting firm. When the Trump administration asks the court to depart from its usual rules, it seems, the court is quite willing to do so.
The court’s failure to expedite the ACA case is made even more curious by the sheer frivolity of the legal arguments being mounted by the ACA’s opponents: They are so objectively bad that it is irresponsible for the high court to allow these lawsuits to proceed. For example, the challenge to the mandate rests on the assertion that the Republican-controlled Congress, in “zeroing out” the mandate penalty, actually strengthened the mandate — imposing a free-standing legal obligation to purchase health insurance. But Republican legislators maintained they were repealing the mandate, along with the penalty; that is also how the president has described the amendment. And in any case, the Supreme Court, in National Federation of Independent Business v. Sebelius, already definitively rejected the administration’s current interpretation of the mandate. In that case, the court rejected the claim that the individual mandate imposed a legal obligation to purchase health insurance; the court said it merely imposed a tax penalty on individuals who didn’t purchase insurance — it didn’t criminalize the failure to purchase health insurance.
The government’s arguments for why courts should invalidate the entire ACA are even worse. A provision in a statute is considered “severable” from the rest of a law if, in the courts’ judgment, Congress would have wanted the other provisions in the statute to remain even if the provision in question were struck down. (Indeed, courts are supposed to err on the side of upholding the rest of a law when one part is struck down.) But when it comes to the ACA, there is no reason for courts to guess at Congress’s intent. When Congress for all practical purposes eliminated the mandate, it kept the remainder of the ACA. Congress clearly believed the ACA’s general protections could exist without the mandate.
The court has a lot of discretion over which cases it hears and when. But how the court chooses to exercise that discretion can be revealing. The court has bent over backward to take extraordinary measures to review lower court decisions expeditiously when it benefits the Trump administration. Now, the court has refused to take similar steps in a case of national importance about the future of the ACA, producing a political windfall for the administration.
That leaves the unsettling feeling that the court’s decision not to hear the ACA case now is more about politics than law.