Obamacare Update: House and Blue States File Petitions for Certiorari, and Seek Expedited Review This Term

Under the proposed schedules, the Supreme Court would hear the case at the end of April or in special May sitting

|The Volokh Conspiracy |

On December 18, 2018, the Fifth Circuit decided Texas v. United States, the constitutional challenge to Obamacare. (A revised opinion was issued on December 20.) At the time, I expected the House of Representatives, and the Blue States, would file their cert petitions within a manner of days. After oral argument, the writing was on the wall. The documents could have been prepared in advance. If they hustled Texas's response would have been due by January 20–just in time for the pivotal January 24 conference. If Texas's request for an extension was denied, then the case could have been heard this term, without the need to grant a motion to expedite. Critically, four votes are required for cert; five votes are required to expedite.

But the House and California did not file right away. They waited more than two weeks. Today, both parties filed cert petitions (House and California). To be sure, their pleadings were filed at a rapid pace; but not super rapid pace. We know from the travel ban litigation that elite law firms can prepare quality pleadings in a very short time.

Under the Court's normal rules of proceeding, it will be virtually impossible for the case to be heard this term. Generally, petitions granted at the end of January will be argued at the end of April. Petitions granted in February are usually heard the following term. The Court seldom grants May sittings. Based on my count, over the past quarter-century, there have only been three May cases.

As a result, both parties filed motions to expedite (House and California).  The House offered two proposed briefing schedules. (To further the feeling of Groundhog Day, former Solicitor General Donald Verrilli was counsel for the brief).

Under the first option, the respondents brief would be due in 18 days:

  • January 15, 2020—Amici supporting cert
  • January 21, 2020—Respondent brief
  • January 21, 2020—Petition distributed
  • January 23, 2020—House files reply brief.
  • January 24, 2020—Court considers petition at conference
  • February 24, 2020—Petitioner's opening brief due
  • March 23, 2020—Respondents' brief due
  • April 17, 2020—Petitioner's reply brief due
  • April 27, 28, or 29, 2020—Oral argument

Under the second option, the respondents brief would be due in 31 days:

  • January 17, 2020—Amici supporting cert
  • February 3, 2020—Respondent brief
  • February 5, 2020—Petition distributed
  • February 12, 2020—House files reply brief.
  • February 21, 2020—Court considers petition at conference
  • March 20, 2020—Petitioner's opening brief due
  • April 20, 2020—Respondents' brief due
  • May 8, 2020—Petitioner's reply brief due May 2020 Oral argument

Practically speaking, either the Chief Justice or Justice Kavanaugh will be lobbied to provide a "courtesy fifth." If they decline to provide such a vote, this petition will be heard next term, if at all. Recall, the Fifth Circuit's decision did not issue any final ruling. Moreover, a stay is in place.  The Court may simply wait for a later juncture to consider the legal issues. Issues of standing, the constitutionality of the mandate, and the proper rule for the severability analysis, can be heard at any time.

NEXT: Reminder: American Officials Lie About War

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  1. Hopefully, Trump appoints a 3rd justice who, with the wind at their back, is willing to put the final nail in the coffin of this many-tentacled monstrosity.

    1. A third justice who is willing to impose a remedy that harms third parties for to relieve the plaintiffs of a non-justiciable injury? Doesn’t sound very likely.

      Also not very likely that Mitch McConnell is going to want to answer the question, “You previously said that the American people should have a voice in the selection of the next Justice. Why did they deserve a voice then, but not now?”

      1. “not very likely that Mitch McConnell is going to want to answer the question”

        Mitch would have a confirmation vote before noon on Inauguration Day if that is what it took.

        1. I agree = Mitch would have a confirmation vote before noon on Inauguration Day if that is what it took.

        2. If that’s true, then he truly did deserve to have Christopher Browning compare him to Hindenberg and call him the gravedigger of American democracy.

        3. How long will it take Democrats to enlarge the Supreme Court and enact universal health care?

          Extra credit for predicting the order.

          1. I doubt the Democrats will introduce any legislation to expand the Supreme Court until after Trump leaves office January 2025.

      2. Yeah m_k’s reactionary desire to kill the ACA with nary a mention of making any kind of legal sense is more or less where the right is on most issues.

        But in a similar vein, I expect McConnell’s answer to the question you think would be uncomfortable will be the equivalent of a simple ‘F-you’ and a smile.

        1. You define killing Obamacare as “reactionary”…. that you think it is progress is bad enough, but trying to get rid of it is normal give and take within the 40 yard lines of American politics. It’s not like it’s been there since the founding, the law isn’t but a decade or so old.

          1. First, no it’s not – look at the polls.
            Second, reactionary is not radical, which is what you seem to be arguing against. It’s reactionary because your comment above cared nothing about means just want to own the libs, who cares how or why.

            The 5th circuit decision is pretty ridiculous – even the commenters and Conspirators here were looking at it askance a couple of weeks ago. Except Blackman, as seems to be the usual with him. But, as a reactionary, you clearly don’t care.

            1. No, I don’t want to own the libs, that’s silly to say. Obamacare is the worst law since the Fugitive Slave Acts, and making it kaput would be a victory for freedom. That’s neither reactionary, nor radical.

              As for the legal reasoning, both you and I know that it really doesn’t matter much. In these high profile cases, they know they policy end that they want, and work backwards to get there. Roberts certainly did, to make the mandate a tax. That said, the case against the law is not as bad as you portray it, then as now.

              1. Yes people who weren’t on Medicaid before and now are under ACA but were not party to the case will be free to go into medical debt or die. What a country.

              2. Your shallow and manichean analysis is why you’re a reactionary.

                Believe it or not, I’m not a legal nihilist like you are – I’d rather lose by the rules than win and break them. Because the rules are viewpoint neutral and will help me out one day as well.

                You know who doesn’t care about the rules because nothing matters anymore except not letting the bastards on the other side win? Reactionaries.

                And no, I don’t agree with the cynical legal realism take that there are not and have never been rules. There are many counterexamples to that if you would care to look for them.
                The idea that Roberts had the outcome he came to in mind given his political leanings makes no sense. You think he was blackmailed?
                Roberts didn’t follow the logic I would have, but I agree with his analysis about the taxing power not being limited to raising revenue.

                1. “You know who doesn’t care about the rules because nothing matters anymore except not letting the bastards on the other side win? ‘

                  Winners

                  1. Sociopaths?

                    1. Winners.

                      Its like bad football calls. Only losers cry about rules.

                    2. Bob,

                      That’s exactly the response a sociopath or nihilist would say. If you actually behave like that in your personal life people probably don’t like you very much.

                    3. Losers also cry about how law faculties don’t hire enough movement conservatives or religious fundamentalists.

                      Strong law school faculties, of course. Some downscale faculties feature plenty of superstitious right-wingers.

                2. “I’d rather lose by the rules than win and break them. Because the rules are viewpoint neutral and will help me out one day as well.”

                  Give us a break. You’re a living constitutionalist: You’d rather stick to “the rules” because you claim “the rules” are whatever gives you the win.

                  1. Unsurprising you assume all non-originalists are acting in bad faith. There are plenty of things I wish were constitutional that are not.

                    As I’ve listed for you before. As well as explicating my nonoriginalist rules of constitutional interpretation.

                    So either learn to read and remember what I say or quit attacking a strawman and quit calling me an unprincipled liar.

            2. The mandate is effectively dead with no penalty to enforce it, they are just going to bury it. But it’s obvious that the whole ACA is not going to be struck.

              But there is a decent path to effectively replace it with a far better free market replacement, starting with Trumps price transparency regulations, then follow that up with regulations to allow al la carte insurance plans to make insurance affordable again.

              1. The ACA is essentially a welfare program for people who were uninsurable for perfectly good reasons: Insurance deals with risks, not certainties. If you’ve already got a condition, insurance simply isn’t applicable to it, it would be like buying fire insurance after your house caught fire.

                As a welfare program, it might be justifiable, depending on your view of welfare.

                The problem is that the Democrats didn’t want to admit they were creating a new entitlement program, and they certainly didn’t want the cost of it to show up on the budget. So they used regulation of insurance companies to compel THEM to implement the welfare program, where it wouldn’t appear on the government’s books.

                Rather like just ordering grocery stores to sell food to poor people below cost, instead of having a food stamp program.

                But insurance companies can’t run deficits and print money. The only way they could afford to give some people health care below cost, was to overcharge other people. And the other people might decide to stop buying the over-priced product. Thus the mandate.

                And, as long as you’re forcing insurance companies to sell stuff below cost, why not include some handouts to buy votes from particular interest groups? Free contraceptives for women. Subsidize the abortion industry by forcing insurers to cover elective abortions?

                How do you get rid of a program like this? Any entitlement program creates concentrated benefits and diffuse costs, and so the beneficiaries are more politically motivated than the victims.

                You’d have to replace the ACA with a real, on the books welfare program, and then free the health care industry to run on normal free market principles. (As it hasn’t since roughly WWII.)

                The beneficiaries of the ACA aren’t going to like that, because the ACA gives them the illusion that they’re actually paying their way, not relying on the dole. But it should at least blunt their objections.

                1. I don’t get where you thought that it was in any way secret that the ACA was an entitlement program.

                  Just because it includes a middleman isn’t some sign of secrecy. Lots of Obama quotes talking about the innovation inherent in our market-based approach. I think he’s wrong about that, or at least that it’s an inefficient way to get those benefits, but this scheme you’ve speculated up is lacking the fundamental requirement of actually existing.

                  The closest you can come is some on the left saying single payer will replace the ACA if it founders. Which, again, was said openly and isn’t a secret agenda.

                  1. Not “secret” in the sense that anybody with some sense couldn’t figure it out. “Secret” in the sense that they nominally denied that it was an entitlement program.

                    The real problem here from a constitutional standpoint is that they had to further enlarge the already swollen extent of the interstate commerce power to do it. Whereas an on budget entitlement program would have been doable within the powers the federal government had already usurped.

                    The interstate commerce power, originally created to allow Congress to regulate actual commerce crossing actual state boundaries, (And that mainly to preempt state regulation of the same!) has now been expanded to encompass Congress mandating that individuals engage in specified intrastate commerce. That was the price of Roberts ‘saving interpretation’.

                    1. Yeah, so you don’t like the ACA because you don’t like the New Deal.

                      OK then.

        2. Is he really prepared to answer why he doesn’t care about democratic values and voters anymore? I’m not so sure. He can probably make up different excuses about precedents involving party alignment and what have you, but at the end of the day he said it on Twitter and on the floor of the Senate; “The American people deserve a voice.” I don’t think he can escape it, and he knows that deep down even if he wants to pretend otherwise to conservative crowds.

          1. Do you think Obama felt twinges of guilt when he looked in the mirror, after saying so many times on national TV…”If you like your doctor, you can keep your doctor. If you like your plan, you can keep your plan.”

            They are politicians….they lie, and they all have a bit of a sociopathic tendency in them.

            1. Maybe. Probably actually. But lying about whether or not voters actually matter seems to be a bigger issue than lying about the specifics of a policy. Especially since its not like everyone (or even most people) in the country suddenly switched doctors.

              I mean how is he supposed to answer? “Senator you said the American people deserved a voice. Now you don’t? Why don’t their voices matter now?”

              1. You’re being very kind to Obama that he *may* have felt guilty about the lie that was necessary to pass the law. That said, McConnell is a politician, which means by definition that he lies and is an opportunist and in order to get (re)elected they (usually) appeal to their donors and voters. He’s made the so called “Biden rule” a big deal in 2016, when it wasn’t but a suggestion from opportunist lying Democrats, and thus if he did it once, he will (I believe) have no difficulty in doing it again.

                That said, mercy upon RBG is asked, and maybe she won’t go to that big courtroom in the sky for a while yet.

                1. What do you think he’s actually going to say when asked why he now believes the voices of Americans don’t matter and that clip of him saying that on the Senate floor in played back to him, and his tweet read verbatim?

                  1. Oh noes, a tweet read verbatim! Shudders.

                    When he was just GOP whip, held up the McCain–Feingold Act for years against blistering attacks from even much of his own party. Garland, his single minded focus on confirmation etc.

                    The Honey Badger of politics just don’t care what you think.

                    1. It’s telling that you guys can’t come up with an answer. It means he probably can’t either. Remember the exact quote is: “The American people deserve a voice.” HTF do you actually walk that back?

                    2. “do you actually walk that back?”

                      Sure. One can walk back anything.

                    3. Okay. Walk it back. Explain to me why Americans deserved a voice in 2016 but don’t in 2020.

                  2. Probably the same thing today’s Dems are saying when showed their quotes about partisan impeachments from the Clinton era.

                  3. OK LawTalkingGuy, no one seems to want to bite, probably because it is really easy to walk it back. The people deserved a vote in 2016 because the Biden rule. But Biden has been out of office a long time so his rule no longer applies. Or, the people deserved a vote because Obama had nominated a radical who was likely to change the direction of the court and the country so special care was needed.
                    Or maybe he’ll walk back based on a distinction between a 1st term president and a lame duck 2nd term president or because years ending in 6 have different vibes than years ending in 20. If he decides he needs to walk it back, he will , and most of his supporters will nod their heads and some of his opponents will be outraged by the dishonesty, and most of the rest of us will be annoyed at one more display of power politics and maybe a bit more annoyed at one more dishonest argument

                    1. Or maybe everyone understands quite well that the “Biden rule” was, “No Supreme court confirmations in a Presidential election year where the President’s party doesn’t control the Senate”?

        3. Sarcastr0, PPACA as originally written and implemented is pretty much dead. As a practical matter, regardless of political viewpoint, it is mostly gone. To my way of thinking, now we can argue the true philosophical crux of the matter: Is it constitutional for the Federal government to compel an autonomous individual to purchase a product.

          1. You can’t because there is no injury when there is a phantom mandate. Also I don’t think it’s “dead” to people who are now on Medicaid who wouldn’t have qualified before.

          2. Um, a bunch of people are covered who previously were not, as was the purpose of the program.
            The specifics of the individual mandate are the means, not the end.

            We don’t do philosophical cruxes in our legal system – Constitution says only messy, real-life cases and controversies.

            1. And you are still too ignorant to realize he could have covered the same by just expanding medicaid instead of defining what is healthcare. Likewise he made healthcare more unaffordable bu the high floor high deductible plans where many actually have less care overall despite being covered. It is weird to look at a coverage metric and not an accessibility metric. But you do you.

              1. Rather uninformed comment. Obamacare has helped hundreds of thousands (millions??) of people like me. I earn plenty of money, but was literally un-insurable (i.e., there was not a single insurance company who would take me on, due to (a) having a bad back, and (b) having slightly high cholesterol, which was, is, and will be easily and cheaply treated with a statin). Now, instead of having zero insurance options, I have more than a dozen choices each year, and have happily been with a Blue Shield PPO for several years now. For me, paying $600 per month is much better than having no insurance and thereby being at risk of losing all my assets if I were to suffer a major health event. Obamacare has been a lifesaver for me.

                Yes, the poor, and working poor, are the biggest beneficiaries. But tons of people–with pre-existing conditions–with healthy incomes are also very happy with the ACA.

                I think it’s telling that Trump talked a great game during the last election about how easy it would be to get rid of Obamacare and replace it with something far better. His solution was to try and get rid of Obamacare but offer nothing it its place. Talk about a “lie of the year”!

                1. It’s always possible for the government to make Paul better off, if it’s willing to make Peter worse off. And Paul actually DOES end up better off, it’s no illusion.

                  Doesn’t mean that Peter’s happy about being robbed.

                  1. The policy question is what was being discussed in this thread.

                    The ACA is neither dead nor something that could have been accomplished with mere medicaid expansion.

                    1. Right, as I discuss above, it’s a welfare program hidden off budget by compelling private companies to implement it. That’s been obvious from the beginning.

                      And implementing it that way had terribly distorting effects on the insurance market, which was already a distressingly long way from being a free market.

                    2. I don’t think anyone was secret that it was an entitlement program.

                      The market for health insurance has never been a proper market anyhow.

                    3. Never is an exaggeration, it really got bad due to WWII wage and price controls. But that’s no excuse to make it worse.

                    4. Even before the modern era, the demand curve has been fakakta.

                    5. A “fakakta” demand curve is hardly the same thing as not being a free market commodity. Until WWII we pretty much did have a free market in medical care, aside from the doctor’s cartel.

                      Now it’s the most heavily regulated and messed up market in the country.

                    6. Supply and demand are not operating via the optimizing invisible hand. So no, no market here.

                      Yeah, the market for medical care in the pre-modern era was not super regulated. Easy when care is cheap, so there was an easy supply-value ceiling. But once that ceiling got seriously high, insurance became needed, and that’s where the nigh vertical demand curve makes it crazy.

                      I’m already not happy that we have use a market here, making health and life something the rich get more of, but don’t pretend a free market wouldn’t be what we have now, but worse – bankrupting the middle class, killing the poor, and letting the rich go.

                      That’s why the government has been involved for a very long time.

          3. Lol, Obamacare is stronger than ever! Obama always opposed the individual mandate and only included it to entice Republicans to vote for it. Trump has made Obamacare stronger because the Kushner family is heavily invested in the ACA Exchanges. So Trump was literally the only 2016 Republican candidate that would have saved Obamacare!! Thanks Deplorables!!! Lololololol!!!

            1. You seem to be forgetting that it was McCain that saved Obamacare not Trump or Kushner.

              Or are you saying that McCain was in Trump’s back pocket all along?

              Crowing about Trumps failure to fully repeal Obamacare is reminiscent of Labour crowing about Boris’ failure to achieve Brexit by October 31st. What a colossal pwn, they humiliated Boris bigtime.

              1. Don’t you think health care, including the failed repeal of Obamacare, was one of the main reasons Democrats took back the House in 2018?

              2. Actually McCain only stopped the repeal of the individual mandate which helped Ryan get an extra $300 billion in tax cuts. The Kushners’ health insurance company keeps expanding and seems to be really good at predicting Trump’s executive orders. 😉

    2. “A third justice who is willing to impose a remedy that harms third parties for to relieve the plaintiffs of a non-justiciable injury? Doesn’t sound very likely.”

      Yet, here were are, balanced on the edge of a knife. Not to mention, that in the past the Chief Justice could have not saved the law either. Similar sky is falling arguments were made when SCOTUS when it ruled portions of the Voting Rights Act, essentially, as outdated.

      McConnell has already said he’d schedule a vote if an opening occurs. Not very nice, but then, neither was impeachment on such weak charges. Yes, yes, I know it is a tit-for-tat that is further polarizes.

      1. It’s not just “not very nice.” He’d be saying Americans actually don’t deserve a voice in the selection. It would be super damaging for his party. He and the party can’t withstand that criticism, and despite bluster to conservative audiences, he knows that.

        1. McConnell may be able to withstand the criticism, because it was withering when he held no vote for Garland, and it will be worse when Trump’s impeachment trial is quickly disposed of. However, where do you get the data to make you conclusion that the party can’t take the heat? The party, which would cheer on a vote, would be guilty of some serious hypocrisy, but no worse then the Democrats when they supported the Iran Deal, etc. etc. or the GOP in the first place that REFUSED to appease their base and not repeal Obamacare when they had majorities after 2016.

          1. Because none of those instances were someone saying: “Americans actually don’t deserve a voice even though I said they did.”

            1. It’s hard to prove a counterfactual. Thus, you’re left with nothing but conjecture. Do you have any comparable situations, with the same people involved by which to judge?

              1. I remember the good old VC days before Reason, but it’s good to see that nothing has changed. The ACA is still the worst thing in history and the R’s/Cons still have neither a clue nor a desire to see people get health care. Because “broccoli.”

                1. What an intelligent non emotional argument you make. Is sarcastro your mentor?

                  1. Which emotions?

                2. The best way for people to get healthcare is to stop the people in government from shitting up the healthcare sector.

                  You people seem to believe the only way to get healthcare is if it’s some crappy government run program designed only to create grievances and perpetual political clients.

                  1. Excellent point Gompers—our health care system was taken verbatim from Jesus’ teachings in the Bible. My minister told me that Obamacare was taken verbatim from the Koran!?! I will take his word for it because I would never even touch a Koran because it is an evil book!

                    1. The people in government spend over half of our healthcare dollars and heavily control the rest.

                      Systems Thinking tells you if there is something wrong with a system, it is most likely the single biggest influence upon it.

                    2. Gompers—the most logical health care system is a single payer universal health care system. You know why we don’t have that?? The UAW and New Deal Democrats!! You are defending a system crafted by the UAW because they wanted unions to supply health insurance in order to get people to join unions.

                    3. Says a lot about you that you think the most logical system is a government monopoly.

                      Nothing good, but a lot.

  2. I doubt this case will ever be heard by the Supreme Court. Either the District Court on remand or the 5th Circuit on a second appeal will find that the penalty-free mandate can be severed from the rest of the law, making the case uncertworthy…

  3. This is pretty cut and dry—Obamacare is constitutional but the Trump tax break includes an unconstitutional tax by zeroing out the individual mandate tax. So the entire Trump tax cut should be declared unconstitutional unless it contains a severability clause.

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