In the 1960’s, the Supremes sang, “You can’t hurry love.”  Apparently, the U.S. Supreme Court now feels the same way about the constitutionality of  the Affordable Care Act (ACA), also known as Obamacare.  On January 21, 2020, the High Court decided not to hurry the decision of whether to hear a case appealing a decision from Texas that the ACA is unconstitutional.   The Court did not decide not to hear the case, only that it would not expedite the decision whether to hear it during its current term.  The High Court will not decide whether to take the case for months and, if it takes it, won’t hear it until the Fall.  This  means the case will likely not be decided before the November Presidential election.

Twenty Democratic states led by California Attorney General Xavier Becerra as well as the House of Representatives petitioned the high court to review the decision by the United States Court of Appeals for the Fifth Circuit holding that the Affordable Care Act’s individual mandate is unconstitutional now that the tax on individuals for failing to have health insurance coverage has been reduced to zero by the 2017 Tax Act.  The Fifth Circuit agreed with the Texas District Court on the individual mandate but would not go as far as the lower court and hold that the entire ACA is also unconstitutional because the individual mandate is such an integral part of the statute.  Instead, the Fifth Circuit sent the case back to the District Court to go through the ACA again with a “finer toothed comb” to determine whether there isn’t any part of the ACA that can stand without the mandate.  Becerra and the Democrats saw no reason for the High Court not to review the case now due to the tremendous implications for our economy.  In the Democrats view sending the case back to the District Court would cause delay for years and the High Court would still have to decide the matter.  The Democrats also asked the Justices to expedite the application so that the case could be heard this term.   On the other hand, the Trump Administration argued there was no need for expedited consideration.

While it only takes 4 justices to decide to review the case and keep it from going back to the District Court, it would have taken 5 of the 9 justices to expedite the case.  Therefore, despite it not being expedited, it is quite possible that the Court will take the case next term.  The ACA remains effective while the litigation is pending.  The case is titled both as California v. Texas and House of Representatives v. Texas at the Supreme Court.