So much for the Spring Showdown. Two weeks ago, the Supreme Court appeared ready to jump into the middle of a 2020 election debate over ObamaCare, telling both sides of an appear to submit briefs over the possibility of an expedited review of a case where the law was ruled unconstitutional. There was just enough time to add this to the calendar for this session — if the court wanted to stick their fingers into a political and electoral maelstrom.
To quote Emily Litella … never mind:
The Supreme Court on Tuesday rejected Democrats’ plea to consider a high-stakes legal challenge that could kill Obamacare, punting a resolution in the politically fraught case until after the presidential election.
The decision deals a blow to Democrats’ hopes to elevate the issue in 2020, but it will come as a relief to President Donald Trump and Republicans, who’ve been wary of the lawsuit’s potential to scramble their election hopes.
A coalition of blue states and the House of Representatives, which are defending the Affordable Care Act in the lawsuit, had pressed the high court to intervene after a federal appeals court last month refused to rule on the law’s constitutionality and sent the case back to a federal judge in Texas who had earlier issued a ruling knocking out the entire law. …
In deciding to immediately stay out of the fray, the justices sided with the Trump administration and group of red states leading the challenge to Obamacare. They opposed an immediate Supreme Court review of the case, arguing that there was no “emergency,” even as Democrats argued that prolonging uncertainty around Obamacare harms the millions of people who rely on the law for insurance. It could take years for lower courts to resolve the lawsuit.
This decision isn’t terribly surprising. What’s surprising is that they signaled any openness to expediting this in the first place. One has to assume that the court might have worried that an outright refusal to even consider it would be seen as a political act. Having been burned once on this point over the Affordable Care Act, the court might have wanted to make sure that they were seen to be considering the idea and dispensed with it only after due diligence.
If that’s the idea, it doesn’t really seem necessary. The appellate court sent the original decision back to the district court to consider severability after not overturning the core decision that the law is unconstitutional. There does not appear to be an appellate split yet on this specific question after the repeal of the individual mandate penalty. That means the question isn’t yet ripe, and the lack of appellate review on severability means that the original decision at the district level isn’t yet precedential even in the Fifth District.
It’s worth remembering, too, that it only takes four votes to grant cert. If the court’s liberal wing was anxious to get the case so it could re-impose its imprimatur on ObamaCare, they didn’t demonstrate it. For that matter, the conservative wing didn’t unite to get the case to overturn the ACA either. While the court does not reveal the votes for these kinds of orders, I’d put the over-under on votes to grant cert at two … and I’d take the under.
This might take a little pressure off Donald Trump in the 2020 cycle, as he would not have to deal with an instant dismantling of the health-insurance system erected over the last twelve years. Otherwise, the ObamaCare question will remain acute as it was in 2018, when Democrats rode it to a wave that gave them back the House. Even with this SCOTUS punt, Trump and the GOP better have an answer on what they intend to do with health care and health insurance before November.