In strongly worded amicus curiae briefs filed on January 15, 2020, groups representing hospitals, patients, insurers, small businesses, and economists urged the Supreme Court to grant certiorari and expedited review of the Fifth Circuit Court of Appeals decision finding the Affordable Care Act’s individual mandate to be unconstitutional, but remanding the case to the lower court for further analysis on severability.

The briefs were filed by the AARP and other associations representing seniors, the American Cancer Society and 19 other organizations representing patients with serious diseases, America’s Health Insurance Plans, 56 Bipartisan Economic Scholars who had served in both Republican and Democratic administrations, a coalition of national hospital associations including the American Hospital Association, the Small Business Majority Foundation, and 33 state Hospital Associations.

The amicus briefs generally touted the success of the ACA and its impact on broad sectors of the economy.  In frequently stark language, the briefs warned of dire consequences if the Supreme Court were to deny certiorari and expedited review, because it could leave the fate of the ACA uncertain for a protracted period of time.  For example, the AARP’s brief argued:

The Fifth Circuit’s decision wrongly places millions of people who depend on the ACA at risk of losing life-changing health care coverage and puts the national economy and health care system at risk of a catastrophic disruption. Most immediately, the decision plunges millions of Americans into an abyss of prolonged uncertainty because they do not know if they will lose access to life-sustaining health care coverage and consumer protections.

Similarly, the Bipartisan Economic Scholars urged the Court to grant expedited review “to avoid the significant harm that delaying review would otherwise occasion…[L]eaving the ACA in limbo for another year or more needlessly threatens injury to every kind of participant in the U.S. health care system, from insurers, to consumers, to providers, to states.” 

The briefs also laid out the dire consequences of judicial repeal of the ACA.  As succinctly stated by the American Health Insurance Plans’ brief:  “Invalidation of the ACA would wreak havoc on the health care system.”  Quoting from the dissent in the Fifth Circuit opinion, the coalition of national hospital associations argued that “judicial repeal of the ACA would have potentially devastating effects on the national healthcare system and the economy at large.”  The brief went on to describe the consequences on patients and medical providers of judicial repeal: 

It would cause millions of Americans to lose their health coverage, inflicting on them all the harms that come with being uninsured. Low-income families, those least able to cope with these harms, would be hardest hit. Such a finding would also have severe consequences for the hospitals and physicians that provide care to all Americans, which would be forced to shoulder a great uncompensated-care responsibility.

On the merits, the briefs argued that the Fifth Circuit should have itself determined that the mandate was severable from the remaining portions of the law rather than remanding the case for further proceedings.  As stated by the brief filed by the coalition of national hospital associations:  “The Fifth Circuit’s decision to remand was all the more unnecessary because answering this severability question should have been easy.  Law, logic and experience all counsel in favor of severing the individual mandate.” 

The Fifth Circuit decision at issue 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. 

If the Supreme Court grants certiorari and expedited review on the schedule proposed by petitioners, the case could 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 AARP’s brief, please click here; to read the American Cancer Society’s brief click here; to read America’s Health Insurance Plans’ brief, click here; to read the Bipartisan Economic Scholars’ brief, click here; to read the coalition of national hospital associations’ briefs, click here; to read the Small Business Majority Foundation’s brief, click here; and to read the State Hospital Associations’ brief, click here.  

To read Whatley Kallas, LLP’s earlier article on the Democratic Attorneys General and the House of Representatives’ Petitions for Certiorari and Motions to Expedite, please click here and to read our earlier article on the Administration’s and the Republican-led States’ Oppositions, click here. 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.