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Supreme Court refuses to fast-track challenge to Affordable Care Act

  • Author: Robert Barnes, The Washington Post
  • Updated: January 21, 2020
  • Published January 21, 2020

WASHINGTON - The Supreme Court on Tuesday denied a motion to fast-track a challenge to the Affordable Care Act so that it could be considered this term.

Without comment, the justices turned down a motion by the House and Democratic-led states to expedite review of a decision by a panel of the U.S. Court of Appeals for the 5th Circuit last month. The panel struck down the law's mandate that individuals buy health insurance but sent back to a lower court the question of whether the rest of the statute can stand without it.

A practical effect is that the Affordable Care Act is likely to remain in place through the November election.

The House told the Supreme Court that the 5th Circuit decision "poses a severe, immediate, and ongoing threat to the orderly operation of health-care markets throughout the country, casts considerable doubt over whether millions of individuals will continue to be able to afford vitally important care, and leaves a critical sector of the nation's economy in unacceptable limbo."

But President Donald Trump's solicitor general, Noel Francisco, replied that the decision simply preserved the status quo until a lower court looked more closely at which parts of the law should survive. He said it would be premature for the high court to intervene.

"The Fifth Circuit's decision itself does not warrant immediate review because it did not definitively resolve any question of practical consequence," Francisco wrote.

In 2018, U.S. District Judge Reed O'Connor agreed with Texas and other red states that because Congress had reduced to zero the tax penalty for not complying with the ACA's individual mandate to have health insurance, the mandate was unconstitutional. He then ruled that the entire act must fall, although he stayed his decision, and the ACA remains in effect.

In December, a divided panel of the 5th Circuit agreed the mandate was unconstitutional but sent the case back to O'Connor for a more rigorous examination of whether parts of the law should remain in place.

Such an examination would probably take months and push a final Supreme Court decision on the issue far into the future, and certainly past the 2020 elections.

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