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DOJ, Republican states, oppose ACA Supreme Court petition

If the Court decides in favor of the Democratic states, responses should be due February 3 and oral arguments heard in April or May, DOJ says.

Susan Morse, Managing Editor

The Department of Justice and Republican states that brought a lawsuit against the Affordable Care Act oppose a petition brought by 20 Democratic attorneys general to have the Supreme Court expedite review of a recent appeals court decision.

On January 3, California Attorney General Xavier Becerra led a coalition of 20 states and the District of Columbia in filing a petition to the U.S. Supreme Court seeking a swift resolution to the Fifth Circuit Court's recent ruling to send the question of the validity of the Affordable Care Act back to the district court in Texas. The Democratic attorneys general asked the Supreme Court to review the case before the end of the Court's current term in June.

Both the DOJ and the GOP states want the request to expedite consideration denied. Neither the court of appeals' decision nor the district court's underlying judgment presents any current exigency that warrants accelerated interlocutory review, the DOJ said.

The Democratic petitioners principally seek expedition based on a question the Fifth Circuit expressly did not decide, the DOJ said. They contend the Court should consider the petitions on an accelerated basis to resolve "uncertainty" as to which other provisions of the ACA are severable from the individual mandate.

"The court of appeals, however, expressly reserved that question," the DOJ petition said.


If the Court does elect to expedite a briefing and consideration of the petition by the Democratic states, timeline deadlines would be tight.

The DOJ said the Court should allow for responses to be due February 3 and for the case to be considered on February 21. Oral arguments could then be heard in April or May, the DOJ said.

This is in response to the Democratic states calling for responses to the petitions by January 21.


The lawsuit Texas v. U.S., originally filed by a Texas-led Republican coalition, and supported by the Trump Administration, argued that after Congress got rid of the tax penalty for not having ACA coverage, the entire law became unconstitutional.

The appeals court agreed on the individual mandate being invalid, but declined to rule whether this made the entire ACA moot. The court sent the case back to the district court in Texas to decide validity.

Democratic states said the ruling impacts providers, insurers, patients, employers, states and pharmaceutical companies because of the uncertainty in the decision.

But the DOJ said the Fifth Circuit's decision made clear that its ruling has no imminent consequences.


"Petitioners' requests for expedition should be denied because immediate review in this interlocutory posture is plainly unwarranted," the DOJ said. "Petitioners identify no aspect of any operative lower-court ruling in this case that creates any exigency or otherwise necessitates accelerated consideration."

Twitter: @SusanJMorse
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