TWENTY-ONE STATE ATTORNEYS GENERAL AND THE HOUSE OF REPRESENTATIVES ASK THE SUPREME COURT TO REVIEW FIFTH CIRCUIT DECISION FINDING THE ACA UNCONSTITUTIONAL ON AN EXPEDITED BASIS

On January 3, 2020, 21 Democratic attorneys general and the House of Representatives concurrently filed petitions for certiorari, seeking immediate Supreme Court review of the Fifth Circuit decision finding the Affordable Care Act (ACA)’s individual mandate unconstitutional and remanding the case for further review of whether the entire ACA was unconstitutional. The petitioners also concurrently filed motions to expedite, seeking to have the Supreme Court consider the case this term.

Quoting from Supreme Court precedent, the AGs pointed out that “when a lower court has invalidated a federal statute, the usual approach of this Court is to grant certiorari”  and that such review was “particularly important” in this case because of the impact the ACA has on individuals, businesses and governments:  “Prolonged uncertainly about whether or to what extent important provisions of the ACA might by invalidated makes these [health insurance] decisions more difficult, threatening adverse consequences for American families, healthcare markets and the broader community.”

The case was originally brought in the federal District Court for the Northern District of Texas by several Republican-led states and two individuals seeking a ruling that the ACA was unconstitutional and should be struck down because the Tax Cuts and Jobs Act of 2017 had reduced to zero the ACA’s penalty for individuals failing to buy health insurance and because the Supreme Court had originally upheld the ACA as a valid exercise of Congress’ taxing power.  

In a December 14, 2018 opinion, the District Court agreed with the ACA’s challengers, finding that the “Individual Mandate no longer ‘triggers a tax’” and that, therefore the ACA was unconstitutional. The Court also found that the Individual Mandate was “essential and inseverable from the other provisions of the ACA” and that the entire law must fall. The decision was stayed pending appeal.

On appeal, the Fifth Circuit affirmed the lower court’s ruling that the individual mandate was unconstitutional “because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.” However, the Fifth Circuit remanded the case to the District Court to perform the necessary “careful, granular approach to the severability question,” using “a finer-tooth comb” to determine whether all the other myriad provisions of the ACA must fall.

In their petition for certiorari, the AGs argued that Supreme Court review was warranted because the Fifth Circuit decision was “incorrect as to standing, the merits, and severability.” They argued the decision was incorrect on standing because the ACA’s individual challengers could not show injury since the penalty had been reduced to zero and the state challengers had failed to substantiate their financial injuries. On the merits, they argued the decision was incorrect because Congress had merely reduced the penalty to zero without making any other changes to the ACA, including other aspects of the law the Chief Justice’s opinion had cited in finding the law a constitutional exercise of Congress’ taxing power. On severability, they argued that the key to the analysis was Congress’ intent, and in reducing the penalty to zero, Congress had made it clear that other provisions in the ACA would not be affected.

In their motions to expedite, the petitioners proposed briefing schedules that would allow the case to be decided before the Presidential election.

The cases are California et al. v. Texas et al. v. U.S. et al. (19-840) and United States House of Representatives v. Texas et al. v U.S. et al. (19-841), in the Supreme Court. To read the AGs’ petition, please click here and to read their motion to expedite, click here. To read the House of Representatives’ petition, please click here and to read its motion to expedite, click here. To read Whatley Kallas, LLP’s earlier article on the District Court’s opinion, please click here and to read our earlier article on the Fifth Circuit opinion, click here. The attorneys at Whatley Kallas will continue to follow this case as it proceeds through the courts.