Obamacare Poised For Return To The Supreme Court

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Another marquee dispute over the constitutionality of the Affordable Care Act (ACA) is poised to reach the Supreme Court in 2020, as Democrat state attorneys general vow to appeal a lower court ruling that declared the individual mandate unlawful.

California Attorney General Xavier Becerra, who intervened to defend the ACA in court after the Trump administration refused to do so, strongly indicated he would seek Supreme Court review of the 5th U.S. Circuit Court of Appeals’s Wednesday decision striking down the individual mandate.

“What the lower district court gave us, and now what the appellate court in the Fifth [Circuit] gave us, was uncertainty,” Becerra told NPR. “And Americans are fed up with uncertainty when it comes to whether or not they can send their child to a doctor or the hospital. We deserve to have certainty. Health care is not some widget that you play with. It’s life and death.”

A divided three-judge panel said the individual mandate is unconstitutional in view of the 2017 Tax Cuts and Jobs Act, which zeroed-out the financial penalty for failing to buy health insurance. The Supreme Court turned back a challenge to the individual mandate in 2012, explaining that its attendant financial penalty “may reasonably be characterized as a tax.” Since the penalty — called the shared responsibility payment — is no longer raising revenue, the 5th Circuit said it is no longer justifiable on tax grounds.

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However, the 5th Circuit declined to strike down Obamacare in its entirety. Instead, the panel returned the case to a trial judge with instructions to decide whether the mandate can be separated from the rest of the ACA.

Timing could prove problematic for Becerra, however. The justices generally finalize their docket for a given term in mid-January. If the justices decide to take the case at all, the dispute will likely be deferred to the court’s next term, which begins in October 2020.

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