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Supreme Court Urged to Reject Fast Action on Obamacare Appeal (1)

Jan. 10, 2020, 8:09 PMUpdated: Jan. 10, 2020, 9:33 PM

There’s no reason the U.S. Supreme Court should fast-track its consideration of an appeal over the constitutionality of Obamacare, the Trump administration said.

“The Fifth Circuit’s decision itself does not warrant immediate review because it did not definitively resolve any question of practical consequence,” Solicitor General Noel Francisco told the court in a filing Friday.

A group of mostly Republican states led by Texas also urged the court in a separate filing to deny the requests for the court to speed up its review of the appeal.

“In reality, there is no emergency justifying that departure from the ordinary course,” the group said.

The filing was a response to the motion the House and a coalition of mostly Democratic states filed Jan. 3 asking the court to consider on an expedited timeline whether to review the U.S. Court of Appeals for the Fifth Circuit’s decision to send the case challenging the Affordable Care Act back to the district court judge who struck it down.

The appeals court agreed with the district court that the individual mandate to buy insurance was unconstitutional, but said the judge had not taken a close enough look at whether other provisions of the Affordable Care Act could survive without it.

Kicking the case back to the district court “would only prolong and exacerbate the uncertainty already caused by this litigation,” the House and blue state coalition said in their petition. They asked the justices to consider granting review at either court’s Jan. 24 or Feb. 21 conference.

The coalition also asked the justices to expedite the briefing and argument schedule—if the court grants review—so the case could be heard and decided this term. It takes four justices to agree to review a case and five justices to agree to do it on an accelerated timeline.

The red states led by Texas offered a sharp retort in their filing.

“Petitioners seek to rush everything: cert-stage briefing, merits-stage briefing, argument, consideration, and decision,” the states said “Yet they do not explain why this so-called emergency is consistent with their theory that the individual mandate is nothing more than an ink blot.”

If the court does not hear the case this term, uncertainty over the law would continue through next year’s open enrollment period and will increase the cost of insurance policies sold on the exchanges, the House and state coalition said. That might discourage insurers from offering policies on the exchanges at all, it said.

In his response, the solicitor general said there is “no present, real-world emergency” created by the Fifth Circuit’s decision because the individual mandate no longer subjects any individual to any concrete consequence. Congress dropped the penalty to zero dollars in 2017.

If the court were to take the case to see if any of the provisions could survive without the mandate, that would be “premature” because “no lower-court ruling exists on severability or the appropriate remedy,” Francisco said.

“Petitioners’ submission, at bottom, is that the vitality of the ACA’s myriad provisions is too important to be left unresolved. But definitive resolution of that issue will be facilitated, not frustrated, by allowing the lower courts to complete their own consideration of the question,” he said.

Without a ruling invalidating the other provisions of the ACA, the accelerated review the House and state coalition seeks is unnecessary,” Francisco argued.

The red states said if there were really an emergency, the House and blue state coalition would not have waited 16 days after the Fifth Circuit ruling to appeal to the Supreme Court.

“Indeed, if petitioners truly needed their petitions to be briefed before the January 24 Conference, they could have filed them the day after the court of appeals issued its decision,” they said. “Instead, they waited almost two-and-a-half weeks, and now claim a crisis.”

The case is U.S. House of Representatives v. Texas, U.S., No. 19-841, response 1/10/20

(Updated with details on filing by red states, additional information throughout.)

To contact the reporter on this story: Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com

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