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On January 21, 2020, the Supreme Court denied, without comment, motions to expedite its consideration of petitions for certiorari, seeking review of the Fifth Circuit’s decision that the Affordable Care Act’s individual mandate was unconstitutional.  This decision means that it is unlikely that the Supreme Court will issue an opinion in the case before the Presidential election.

The motions to expedite had been filed by the House of Representatives and a group of Democratic-led states, who had argued that “[b]ecause of the practical importance of the questions presented for review and the pressing need for their swift resolution” by the Supreme Court, that the Court should set an expedited schedule allowing the case to be decided this term.  Several amici curiae representing hospitals, patients, economists and small businesses, had filed briefs supporting the motions to expedite, warning of dire consequences to patients, providers, and the economy if the Supreme Court were to deny certiorari and expedited review.

The Administration and a group of Republican-led states had opposed the motions, arguing that
“[n]either  the court of appeals’ decision nor the district court’s underlying judgment represents any current exigency that warrants accelerated interlocutory review….”

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.

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 Whatley Kallas, LLP’s earlier article on the Democratic-led states 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 amicus curiae brief, please click here and to read our earlier article on the Fifth Circuit decision, click here. The attorneys at Whatley Kallas will continue to follow this case as it proceeds through the courts.