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The Supreme Court showdown over Obamacare will be delayed until after the election

Good news for Republicans.

Brett Kavanaugh meeting with Sen. Susan Collins in her office on Capitol Hill on August 21, 2018.
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Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

The Supreme Court quietly denied a motion on Tuesday that sought to hustle along a case asking the courts to repeal the Affordable Care Act in its entirety.

The denial keeps the case alive while almost certainly delaying any reckoning on it until after the 2020 election. Though the Court may still hear the case, it’s unlikely to decide the case until 2021 at the earliest.

In practical terms, that’s a double victory for Republicans: It leaves open the possibility that Obamacare will be killed by a judicial decree, but spares Republican candidates from the media spotlight that would come from a high-profile Supreme Court fight involving a challenge to the Affordable Care Act.

The lawsuit, which was simultaneously styled as California v. Texas and House of Representatives v. Texas in the Supreme Court, is widely viewed as absurd even by many conservative legal advocates who backed previous efforts to undercut Obamacare through federal litigation. In essence, the Texas plaintiffs argue that the entire Affordable Care Act should be repealed because a provision of the law — that literally does nothing — is unconstitutional.

Nevertheless, a coalition of red states won largely favorable legal rulings because the Texas litigation has, so far, been heard almost exclusively by very conservative judges. Judge Reed O’Connor, a former Republican Senate staffer, declared that the entire law must be struck down in 2018. About a year later, two Republican members of the United States Court of Appeals for the Fifth Circuit affirmed most of O’Connor’s order.

The Fifth Circuit also effectively placed the lawsuit in suspended animation for the medium-term future. While the appeals court agreed with O’Connor that a single provision of Obamacare is now unconstitutional, it sent the case back down to O’Connor with instructions that he must identify which other provisions of the law must also fall.

The Texas litigation is widely seen as absurd

The plaintiffs’ legal arguments in Texas are flimsy, and have been widely mocked by lawyers and scholars across the political spectrum. Jonathan Adler, a conservative law professor and one of the leading evangelists for an earlier lawsuit seeking to undermine the Affordable Care Act, labeled many of the Texas plaintiffs’ arguments “implausible,” “hard to justify,” and “surprisingly weak.”

The Wall Street Journal’s conservative editorial board labeled this lawsuit the “Texas ObamaCare Blunder.”

Texas rests on the proposition that the tax legislation Trump signed in 2017 secretly requires the courts to repeal the entire Affordable Care Act.

As originally enacted, Obamacare requires most Americans to pay higher income taxes if they do not have health insurance. This is the “individual mandate,” which the Supreme Court upheld as a valid exercise of Congress’s power to levy taxes.

The 2017 tax legislation effectively repealed the individual mandate by zeroing out the amount of taxes that Americans who do not have health insurance are required to pay. This repeal of the mandate, according to the Texas plaintiffs, renders the zeroed-out mandate unconstitutional. If the Supreme Court upheld the fully functional mandate as a tax, they argue, the zeroed-out mandate must be unconstitutional because a zero dollar tax is no tax at all.

This legal attack on the non-mandate mandate is plausible — though not airtight — but the final stage of the plaintiffs’ argument is bizarre. In essence, the Texas plaintiffs argue that if the zeroed-out mandate is unconstitutional, then the proper remedy is to strike down the whole Affordable Care Act in its entirety. This remedy is at odds with a raft of Supreme Court precedents, including a 2018 decision authored by conservative Justice Samuel Alito.

Obamacare’s defenders wanted the Supreme Court to hear this case quickly

It is very unlikely that five members of the current Supreme Court will agree with the Texas plaintiffs. So a coalition of blue states and the Democrat-controlled House of Representatives both asked the Supreme Court to hear Texas as quickly as possible. That request to expedite the case was denied on Tuesday — although the Supreme Court could still take up the case at a later date.

Obamacare’s opponents, which include the coalition of red states and the Trump administration, both urged the Court not to expedite the case because the Fifth Circuit’s decision did not (yet) disturb any operational part of the law. It appears that a majority of the justices were convinced by this argument.

As a practical matter, this delay allows the litigation to quietly move forward in O’Connor’s courtroom, where it may lie dormant until after the election. That could spare President Trump — as well as Republicans like Sen. Susan Collins (R-ME), who voted against repealing much of Obamacare but who also voted to confirm both of Trump’s Supreme Court appointees — from having to explain to voters why Republicans are trying to take millions of people’s health care away.

The delay could also potentially change the outcome of the case. While Chief Justice John Roberts, the median vote on the current Supreme Court, is very unlikely to buy the plaintiffs’ arguments in Texas, he may be the only Republican member of the current Court who would not vote to repeal Obamacare. If the Texas litigation lingers until Trump can replace Justice Ruth Bader Ginsburg, who is 86 years old, or Justice Stephen Breyer, who is 81, then the plaintiffs in Texas could succeed in destroying Obamacare.

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