Jacquelyn Martin / AP
We forgive you if on the holiday you lost sight of the fact that a federal appeals court in New Orleans once again questioned the future of the Affordable Care Act. Or if the news was lost last week that a group of Democratic Attorney Generals has asked the Supreme Court to hear the case in this term – It ends in June. That would mean that a decision could come right in the middle of the presidential campaigns and the 2020 Congress.
It is not at all clear that the higher court is taking the case at this time (although it is seeking a response from the Republican attorney generals, the plaintiffs of the case, for this Friday).
The court generally does not accept cases that are filed before the sentences of the lower courts are completed.
However, writing recently in the New England Journal of Medicine, Nicholas Bagley, a law professor at the University of Michigan, suggests that the four liberals on the court can choose to roll the dice and vote to take the case because "they can probably count on the president of the court John Roberts, who has twice rejected more substantial challenges to the law and is unlikely to embrace a demand as weak as this one. "
Even so, while only four votes are needed for the court to hear a case, five are needed to hear it expeditiously. That would mean that liberal judges would have to attract Roberts or another conservative to listen to him during this period.
The stakes could not be higher. Republicans, who originally strongly criticized the signing of President Barack Obama's health law to take control of Congress, suffered serious electoral defeats in 2018. Democrats that year won the day by fearing that people with chronic medical problems cannot Get safe health if Republicans prevailed or if patients who obtained Medicaid eligibility through the ACA could lose their Medicaid coverage.
Republicans are unlikely to want another fight over pre-existing conditions and other popular provisions of the health law, just a few weeks before the next election. Recent polls show that some of the main provisions of the law are very popular, even among Republicans.
But for the Democrats there are difficulties to press for a judicial decision this mandate. They risk having the court revoke the law or believe they are trying to solve a campaign problem.
What happens next will affect both politics and politics in an important way.
Democrats seem sure they want the case heard now. "Every day that the Republicans' demand against health care can last is a day when American families will be forced to live with uncertainty and fear," said House of Representatives President Nancy Pelosi in a statement published last week. "Unless the Supreme Court acts, families will continue to face unnecessary interruptions in their coverage and premiums, states will not be able to plan for the future and protections for people with pre-existing conditions will remain in danger."
And Republicans are happy with the decision of the appeals court. "The individual mandate is the centerpiece of Obamacare, and I am glad that the Fifth Circuit has recognized that it is illegal," said Texas Attorney General Ken Paxton, when the Fifth Circuit's decision fell before Christmas. "Finally getting rid of this law will be a victory for all Americans," said Paxton.
But let's go back a minute. How can the ACA once again appear before the Supreme Court? Didn't the court confirm it in 2012? And again in 2015?
Yes and yes. However, that did not prevent the Republicans from campaigning to deactivate the law.
In 2017, after Republicans captured the House of Representatives, the Senate and the White House, Congress failed to "revoke and replace" the signature of Obama's health law. But Congress, as part of the year-end tax bill, abolished the ACA tax penalty for not having health insurance.
In early 2018, a group of Republican attorney generals had an idea, in the words of one of them, of "accelerating the base" for the midterm elections of that year. If the 2012 Supreme Court ruling that ratifies the law considers it constitutional because the provision that requires people to have coverage was based on the ability of Congress to impose a tax fine, would it not eliminate the fine to the rest of the law as unconstitutional?
The Republican argument was dismissed by many legal scholars. But US District Judge Reed O & # 39; Connor in Fort Worth, Texas, shocked the legal and health policy circles in December 2018 when he ruled that the entire law should be revoked. He said the zeroing of the fine made the provisions most closely related to the fine unconstitutional: those that require insurers to sell policies at all at the same price, even if they had pre-existing health conditions.
Democratic general prosecutors appealed (along with the House of Representatives now led by Democrats).
And the Trump administration changed its position. He originally argued that eliminating the penalty should invalidate only the provisions on pre-existing conditions. But last March, the Department of Justice announced that it advocated the annulment of the entire law.
The panel of the appeals court of three judges heard the case in July.
When the panel decision was announced in December, two judges agreed that, without penalty, the remaining "individual mandate" was unconstitutional. But instead of explicitly agreeing or disagreeing with the lower court's decision about the fate of the rest of the huge health law, most chose to send the case back to the lower court "to use a tooth comb finer "with respect to which parts of the law should be allowed to continue and which should go.
That, of course, could take at least another year, possibly longer. Then, the Democrats who defend the law decided to seek the revision of the Supreme Court now.
"We are asking the Supreme Court to quickly resolve this demand for derogation in order to save lives and end the uncertainty in our health care system," said a statement from California Attorney General Xavier Becerra, who heads the coalition.
Meanwhile, the issue of medical care, which is already a priority for many voters, could get bigger regardless of what happens. The irony is that the best scenario for each party, at least politically, is the one that does not really want, because the loser in the main judicial cases often gets the greatest political rebound by energizing an angry base. For Democrats, that would probably happen if the health law were repealed, while Republicans could benefit if the law were respected.
The decision of the Supreme Court on whether to take the case this term could come in the coming weeks.
Kaiser Health News It is an editorially independent program of the Kaiser Family Foundation. KHN is not affiliated with Kaiser Permanente.