On January 10, 2020, the Administration and a coalition of Republican-led states urged the Supreme Court to deny motions seeking to expedite the Supreme Court’s review of a Fifth Circuit decision finding the Affordable Care Act (ACA)’s individual mandate unconstitutional.

The Fifth Circuit decision had affirmed a lower court’s ruling that the ACA’s individual mandate was unconstitutional after Congress reduced the penalty for failing to have insurance to zero “because it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.”  The Fifth Circuit had remanded the case to the District Court to perform further analysis with a “finer-tooth comb” on whether the remaining provisions of the ACA could be severed from the individual mandate, or, as the District Court had found, were inseverable, rendering the entire ACA unconstitutional.

A coalition of Democratic attorneys general and the House of Representatives had sought Supreme Court review on an expedited basis that would allow the case to be decided before the 2020 Presidential election, arguing: “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.” This was “particularly important” because of the impact the ACA has on individuals, businesses and governments.

In urging the Supreme Court to deny the motions to expedite, on behalf of the Department of Justice, the Solicitor General argued that:  “Neither the court of appeals’ decision nor the district court’s underlying judgment presents any current exigency that warrants accelerated interlocutory review….”  This was true, the Solicitor General argued, because the District Court’s ruling that the ACA was unconstitutional had been stayed and the Fifth Circuit decision “did not definitely resolve any question of practical consequence.”

Similarly, the Republican-led states argued:  “Throughout this litigation, petitioners have argued that the Affordable Care Act’s individual mandate impacts no one in any way.  Yet now, they claim that a decision declaring that mandate unconstitutional is so consequential to the Republic that this Court must upend its rules, rush the briefing and argument, truncate its own consideration of the complex questions presented, and hastily render a decision.  In reality, there is no emergency justifying that departure from the ordinary course.” 

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 Administration’s Opposition to the Motions to Expedite, please click here and to read the Republican-led states’ Opposition, please click here.  To read Whatley Kallas, LLP’s earlier article on the Petitions for Certiorari and Motions to Expedite, please click here.  To read our earlier article on the District Court’s opinion, please click here and to read our 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.