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On January 21, 2020, the Supreme Court denied motions to expedite its decision whether to hear a case on the constitutionality of the Affordable Care Act's individual mandate. Specifically, the petition for certiorari asked the Supreme Court to decide whether reducing the individual mandate to zero made that provision unconstitutional, and if so, whether that provision was severable from the rest of the ACA.

As a result of this denial, if the justices decide to hear the case, it likely will not be before the October term.

Background

In December 2018, the Fifth Circuit Court of Appeals held that the individual mandate in the ACA is unconstitutional because it is no longer a tax and no other provision justifies the exercise of congressional power (Texas v. United States, No. 19-10011 (5th Cir. Dec. 18, 2019). The Fifth Circuit remanded the question of whether the individual mandate was severable from the ACA back to the district court (for more details, see Tax Alert 2019-2280).

After the Fifth Circuit's decision, the ACA remains effective until the case again makes its way through the district court and then the appeals court.

Motions denied

The U.S. House of Representatives and a group of states supporting the ACA petitioned the U.S. Supreme Court for certiorari, asking it to hear the case. They also asked the Court to expedite its decision on their certiorari petition because of the uncertainty created by the Fifth Circuit holding.

The Court denied the motions to expedite its certiorari review, leaving the certiorari petition to be decided under the Court's normal review schedule. If the Court grants the certiorari petition, the case is unlikely to be heard before the Court's next term starts in October 2020, during the elections.

Implications

The Fifth Circuit decision was basically inconsequential because the only provision ruled unconstitutional was the individual mandate, which had no federal penalty starting in 2019. Until this case works its way back through the district court for further analysis on the constitutionality of the ACA, then to the circuit court, and ultimately the Supreme Court, the ACA remains the law of the land.

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