The House told the Supreme Court last week 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.”
But President Trump’s solicitor general, Noel Francisco, replied that the decision simply preserved the status quo until a lower court looked more closely at which parts of the law should survive. It would be premature to intervene now, he said.
“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 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.
The Supreme Court this month will select the final cases it will consider in its current term that ends in June. Unless a majority of the court votes to expedite the request from the House and Democratic states, that would mean a final decision on the ACA would not come before November’s election.