But the lower courts have kept the Affordable Care Act in place as appeals continue, and a practical effect of the Supreme Court’s action is that it will stay that way at least through the November elections. Democrats have made health care and defense of Obamacare a key point in the campaign.
The House had told the Supreme Court that the 5th Circuit decision “poses a severe, immediate, and ongoing threat to the orderly operation of health-care markets throughout the country, casts considerable doubt over whether millions of individuals will continue to be able to afford vitally important care, and leaves a critical sector of the nation’s economy in unacceptable limbo.”
The House and Democratic states were eager to get the issue before the Supreme Court because the majority that has upheld the ACA in two previous Supreme Court challenges remains.
President Trump’s solicitor general, Noel Francisco, replied that the 5th Circuit decision simply preserved the status quo until a lower court could look more closely at which parts of the law should survive. He said it would be premature for the high court to intervene.
“The Fifth Circuit’s decision itself does not warrant immediate review because it did not definitively resolve any question of practical consequence,” Francisco wrote.
In 2018, U.S. District Judge Reed O’Connor agreed with Texas and other red states that because Congress had reduced to zero the tax penalty for not complying with the ACA’s individual mandate to have health insurance, the mandate was unconstitutional. He then ruled that the entire act must fall, although he stayed his decision, and the ACA remains in effect.
In December, a divided panel of the 5th Circuit agreed that the mandate was unconstitutional but sent the case back to O’Connor for a more rigorous examination of whether parts of the law should remain in place.
Such an examination would probably take months and push a final Supreme Court decision on the issue far into the future, and certainly past this year’s elections.
House Speaker Nancy Pelosi (D-Calif.) said the court “sided” with Republicans.
“Today’s disappointing decision by the Supreme Court only prolongs and worsens the uncertainty and fear that Republicans’ anti-health care agenda is inflicting on American families,” Pelosi said in a statement, adding that “the Trump Administration and its GOP allies have engaged in an outrageous sabotage campaign to systematically destroy protections for the millions of Americans with pre-existing conditions as well as every last benefit and protection provided by the Affordable Care Act.”
New York Attorney General Letitia James, whose state was one of those asking the Supreme Court to take immediate action, said “we are still urging the court to hear arguments next term. Day after day, President Trump makes false statements, sends misleading tweets, and spouts outright lies about Obamacare and the many protections the law has provided to millions across the country.”