What exactly does the Supreme Court want with an ObamaCare challenge in the spring? It’s tough to say, but it certainly looks as though the top court plans to settle the latest legal threat to the legislation sooner rather than later. The court’s previous decision by John Roberts ruled decided was constitutional in the middle of a presidential election. Are we about to see a do-over? Or a rerun?
The Supreme Court on Monday ordered the Trump administration and states challenging Obamacare to respond by Friday to an appeal filed by defenders of the health care law.
Such a highly abbreviated timeline — the rules normally allow a month for filing a response — gives the court the option to take up the case during its current term, which would mean a ruling on a contentious issue this spring, just as the presidential campaign heats up.
Nineteen blue states, led by California, asked the Supreme Court last week for a quick decision on whether to take the case. They’re appealing last month’s ruling by a federal appeals court that said Obamacare’s individual mandate is unconstitutional and that the rest of the law cannot survive without it.
In this case, time is of the essence. The orders would allow the court to decide whether to grant the request of the states to add oral arguments to their appeal on the court’s last scheduled day for it, or to take an extraordinary step of adding a day in May for a hearing. That would allow the court to then issue a decision on the Fifth Circuit ruling from last month that ruled the individual mandate unconstitutional, now that no penalty exists for violating it, just as Democrats finish their primary and both parties prepare to launch their general-election campaigns.
And if that sounds familiar, it should. The 5-4 decision by John Roberts that upheld the mandate as a constitutional tax came in June 2012, providing Barack Obama a boost in his re-election effort. It undercut a key argument from Republicans that Obama and Democrats had significantly and unconstitutionally expanded federal power at the expense of personal liberty. The chief justice took so much heat over his decision — and still does — that it seems very odd that he would have gone along with fast-tracking this challenge into yet another presidential election cycle.
Roberts might have had little choice, because it’s his decision that created this mess. By ruling ObamaCare constitutional because of the mandate penalty and by also strongly hinting at a severability issue, he set up an obvious strategy for the bill’s opponents — eliminate the penalty. Republicans and Donald Trump did that in their tax-reform bill of December 2017, and the legal challenges started immediately. The Fifth Circuit’s 2-1 decision followed Roberts’ logic to a T: if the mandate was only constitutional because of the penalty, the repeal of the penalty means it’s no longer a tax, and therefore Congress has no authority to force Americans to buy health insurance. The states might, but nothing in the Constitution gives Congress that power, other than through taxation … which no longer applies.
Therefore, while the court has demanded the briefs by Friday ostensibly to determine whether to grant cert, it seems unlikely that they won’t add it to their schedule for this term now. If they had done nothing and just let the Fifth Circuit decision stand, they would have tacitly endorsed the ruling and the states would have gone back to the district court to argue severability. By asking for the briefs, it appears that the court isn’t satisfied with that option, or at least wants to be seen as thinking really hard about it first.
They could still take a pass after reading the briefs, or perhaps just pass on the fast-tracking, but that’s the kind of punt that would be hard to explain after demanding a rushed schedule for these briefs. That’s a curious demand in this situation, too; the tax-reform status quo has been in place for two years already, and we’re eight years past the original 2012 decision. No one is being denied access to buy insurance, so this isn’t a typical emergency. It’s more an emergency of embarrassment for Roberts and the Supreme Court.
If they do take it up, watch out. The other four justices on Roberts’ right aren’t exactly keen to craft new federal authority, and probably wouldn’t go along with Roberts’ old structure of constitutionality for ObamaCare. The four on Roberts’ left aren’t going to revoke their previous approval for the ACA over the elimination of the penalty. Roberts will have to either follow his original logic and reverse his 2012 ruling, or he will have to craft an entirely new theory of federal power to cover his rear end. All of Roberts’ options look bad in this case, which makes the decision to expedite seem very strange indeed.
Finally, the person hardest hit by this might be Joe Biden. If the court rules ObamaCare is still constitutional, it will remain a reminder that the previous administration’s signature legislation is unworkable. If they strike down ObamaCare, it will fuel the Left’s demands for a full takeover of the health-care markets though Medicare for All. Biden’s already having lots of trouble defending ObamaCare, and this might end up being his biggest vulnerability in both the primaries and the general election.