Trump, red states ask Supreme Court to refuse Obamacare case before election

By Susannah Luthi

The Trump administration and Republican-led states are urging the Supreme Court to swat away Democrats’ request to immediately review a lawsuit threatening Obamacare, which would ensure the politically fraught case doesn’t get resolved until after November’s election.

The justices had asked the Trump administration and red states challenging the health care law to respond to a plea from state Democratic attorneys general to fast-track review of the case by this summer. The Democrats' request came after a federal appeals court last month ruled against the Affordable Care Act’s individual mandate but sent the case back to a federal judge, likely delaying a resolution until next year unless the Supreme Court intervenes.

Democrats defending the law in court, including the House of Representatives, say the Supreme Court must decide the case before the election to address uncertainty over Obamacare's fate. They worry that President Donald Trump would be shielded from the political consequences if the court ultimately guts or overturns the law.

But the Trump administration, which is supporting the red states' challenge, argued the Supreme Court has no pressing need to intervene since the law remains in effect while it's on appeal.

"Far from being urgently needed, this Court’s review thus would be premature," Solicitor General Noel Francisco wrote for the Justice Department on Friday. A resolution in this case “will be facilitated, not frustrated, by allowing the lower courts to complete their own consideration of the question,” he wrote.

The coalition of Republican attorneys general behind the Obamacare lawsuit, led by Ken Paxton of Texas, made a similar argument Friday while mocking Democrats' plea for urgency.

"In reality, there is no emergency justifying that departure from the ordinary course," Paxton wrote to the court.

A high court intervention could elevate the lawsuit and its threat to guaranteed health coverage for people with chronic medical conditions to the forefront of the 2020 election. Democrats leveraged the lawsuit to secure huge gains in the 2018 midterms and ultimately retook the House majority.

The 5th Circuit Court of Appeals panel of judges last month refused to decide whether any part of former President Barack Obama's signature law could remain in place after a Republican-led Congress eliminated the tax penalty for not having health insurance. They instead assigned that complicated exercise to the federal judge in Texas who already nixed all of Obamacare in late 2018.

Democrats have asked the Supreme Court for a quick decision on whether to take up the case, though there's no indication of when the justices may decide.

It takes five Supreme Court justices to expedite review. Legal observers believe the court’s four liberal justices would support Democrats’ request to fast-track the case, meaning just one conservative justice would need to agree. Some think that Chief Justice John Roberts, who has previously authored two decisions upholding Obamacare, would provide that vote.

Though the Supreme Court rarely intervenes in a dispute before it's been fully resolved in the lower courts, observers posit that the Obamacare case's high stakes could move them to step in, rather than prolong uncertainty for the health system and millions of people with Obamacare coverage.

The lawsuit was considered a long shot when it was introduced nearly two years ago, but it’s since emerged as a major threat to Obamacare. Those challenging the law argue that Congress’ decision remove the tax penalty for not having coverage — while leaving the rest of the mandate on the books — invalidated Obamacare, since the Supreme Court previously upheld the mandate as a legitimate exercise of congressional taxing power. Without a tax, they say the law is no longer constitutional.

A pair of individual plaintiffs also named on the lawsuit said they’re hurt by the mandate, even without the tax penalty for skipping coverage. Their lawyer, Robert Henneke of the conservative not-for-profit Texas Public Policy Foundation, argued against expedited review of the case, saying it deserves “the most thorough briefing.”

In a brief to the Supreme Court, Henneke decried the notion that politics should wade into the justices’ consideration of whether to fast-track the case.

“This Court should decline Petitioners’ invitation to politicize this case, particularly in an election year,” he wrote.