The Trump administration and a coalition of Republican-led states have asked the Supreme Court to deny a request to expedite a review of a lawsuit challenging former President Barack Obama’s Affordable Care Act (ACA), also known as Obamacare.

The administration and state officials urged the court to deny the motions filed by the House and Democrat-led state in separate filings on Friday. The motions, filed last week, asked the top court to urgently consider taking up appeals of a lower court ruling that found a key aspect of Obamacare, the “individual mandate” provision, unconstitutional.

Along with ruling the individual mandate was unconstitutional, the appeals court sent the case back to the district court to decide on whether that provision was severable from the rest of the law. If the court finds the provision is inseverable from the law, it could effectively invalidate the whole ACA.

In the filing, the administration and state officials argued that the Supreme Court did not have to urgently consider the case because the district court needed to make a decision on the issue of severability before the top court can take up the case.

“As the case comes to this court, no lower-court ruling exists on severability or the appropriate remedy. Far from being urgently needed, this court’s review thus would be premature,” Solicitor General Noel Francisco wrote in the filing (pdf) for the Trump administration.

“Absent any operative ruling invalidating the ACA’s other provisions in the interim, the accelerated review petitioners seek is unnecessary,” he added.

He said instead of intervening, the court should let the lower courts complete their own consideration of the question of severability.

In their motions, House and Democratic state officials’ also requested the court to fast track the case and issue a ruling before its current term ends in June. They argued that the court’s expeditious consideration is necessary because of the uncertainty the lower court’s decision has on health insurance and the health care marketplace, as well as for millions of Americans who have purchased health insurance under Obamacare (pdf).

In addressing that request, Francisco said the appellants had not provided a compelling justification for an accelerated timeline to consider the case.

In December, judges at the Fifth U.S. Circuit Court of Appeals in New Orleans ruled 2–1 that a key aspect of Obamacare was unconstitutional. The judges in the majority said the “individual mandate,” which required people to obtain health insurance or pay a tax penalty, was invalid after Congress removed the tax penalty in 2017, rendering the law unenforceable.

Following Congress’s amendment, a group of Republican-led states and two private individuals filed a lawsuit against the federal government claiming that the provision was no longer constitutional and that the whole ACA needed to be invalidated because the provision was inseverable from the rest of the law. During the district court trial, the Justice Department told the court that they agreed with the Republican states that the provision was unconstitutional (pdf) and declined to defend the ACA. The district court found in favor for the Republican-led states, prompting an appeal.

In the majority opinion (pdf) of the appeals case, Judge Jennifer Walker Elrod, appointed by former President George W. Bush, said the individual mandate was unconstitutional because “it can no longer be read as a tax, and there is no other constitutional provision that justifies this exercise of congressional power.”

On the issue of severability, Elrod directed the district court to “employ a finer toothed comb” to conduct a more detailed analysis of which provisions of the ACA Congress had intended to be inseverable from the individual mandate.

The House and Democrat-led states, who requested to intervene in the initial lawsuit and appeal to defend the ACA, then separately appealed the Fifth Circuit’s ruling to the Supreme Court, saying in one of the petitions (pdf) to the top court that the lower court’s ruling has “cast doubt on the validity of the entire ACA, arguably the most consequential package of legislative reforms of this century.”

On Friday, the other respondents in the case—the state officials and two individuals, Neill Hurley and John Nantz—also made similar arguments in their filings urging the court to deny the motions.

“There may come a day when this court’s review is appropriate, but it is after the issue of severability is decided,” the state officials argued (pdf).

Follow Janita on Twitter: @janitakan


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