The Supreme Court will take a look at another challenge of the constitutionality of the Affordable Care Act, or Obamacare, in the fall.


WASHINGTON – The Supreme Court agreed Monday to decide the fate of the landmark Affordable Care Act for the third time since its passage a decade ago.

Acting at the behest of 20 states led by California, the high court will review a federal appeals court’s ruling that the law’s central health insurance mandate is unconstitutional.

That ruling in December from the U.S. Court of Appeals for the 5th Circuit was based on Congress’ elimination in 2017 of the tax penalty for those who do not purchase insurance. It left open a far more important question: whether the law itself cannot stand without the insurance requirement.

The Supreme Court upheld the law, signed in 2010 by President Barack Obama, in 2012 and 2015 by votes of 5-4 and 6-3, respectively. In both cases, Chief Justice John Roberts sided with the court’s four liberal justices – a coalition that may save the law again.

President Barack Obama signed the Affordable Care Act on March 23, 2010, in a White House ceremony. The historic law was passed after a 14-month political battle. (Photo: Alex Wong, Getty Images)

In January, the justices refused to hear the new case on an expedited basis, eliminating any chance they would hear and decide it during this year’s presidential campaign. It is now likely to be scheduled for oral argument in the fall and a decision in 2021.

The court has its hands full this term with an election-year docket that includes major cases on abortion, immigration, gun control, gay rights, freedom of religion and subpoenas seeking President Donald Trump’s tax and financial records. Another Obamacare case, challenging the law’s requirement that women get free coverage for contraceptives, will be heard in April.

In the case granted Monday, the ruling by the U.S. Court of Appeals for the 5th Circuit left the law intact but facing an uncertain future. That court sent the case back to a federal district court to decide if the entire law must fall without the insurance mandate and tax penalty.

The issue divides states led by Democratic governors and legislatures from those led by Republicans.

“As Texas and the Trump administration fight to disrupt our health care system and the coverage that millions of people rely upon, we look forward to making our case in defense of the ACA,” California Attorney General Xavier Becerra said Monday. “American lives depend upon it.”

But Texas Attorney General Ken Paxton said the justices should uphold the lower courts and declare the law unconstitutional.

“Without the individual mandate, the entire law becomes unsupportable,” Paxton said. “The federal government cannot order private citizens to purchase subpar insurance that they don’t want, and I look forward to finally settling the matter before the U.S. Supreme Court.” 

The Justice Department, claiming the law is in no imminent danger, had urged the justices to stand down and let the district court do its work.

The new challenge stems from the $1.5 trillion tax cut passed by the Republican-dominated Congress in 2017, which repealed the health care law’s tax on people who refuse to buy insurance. That tax was intended to prod them into the health care marketplace rather than let them seek emergency care while uninsured.

In December 2018, federal District Judge Reed O’Connor ruled that without the tax, the law could not survive. His ruling, which was put on hold while it was appealed, threatened to wipe out insurance for 20 million people, protection for those with preexisting conditions, subsidies for low-income people, Medicaid expansions in many states, coverage for young adults up to age 26 and more.

The appeals court panel agreed, 2-1, that the individual mandate is 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,” Judge Jennifer Walker Elrod wrote for the majority.

Rather than strike down the entire law, as O’Connor did, the panel sent the case back to federal district court for “additional analysis” on whether the individual mandate can be severed from the rest of the statute. In doing so, the panel noted the Trump administration’s changing positions in the case.

The Justice Department originally sought to strike down only the individual mandate, then joined Texas and other Republican-led states seeking to kill the entire law. Finally, it suggested such a ruling might be applied only in the 18 states challenging it.

Dissenting Judge Carolyn Dineen King called the appeals court ruling “textbook judicial overreach” that “ensures that no end for this litigation is in sight.”


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