U.S. Supreme Court building in Washington, D.C., on Dec. 4, 2019. Photo: Diego M. Radzinschi/ALM
The state of Texas on Monday argued that the U.S. Supreme Court should not take up the Affordable Care Act case, because it said the appeal is not yet ripe.
The state argued in its brief in opposition that the appeal by a coalition of Democratic states and the U.S. House of Representatives came too early, because a Texas district court hasn't had the chance to rule whether the entire law, nicknamed Obamacare, is unconstitutional.
"Where, as here, a court of appeals resolves the merits of an appeal but not the remedy, and remands to the district court to enter an appropriate remedial order, this court's practice is to deny review," the motion said. "This court should not allow petitioners to leapfrog lower-court consideration."
Related: Supreme Court won't rush its review of ACA challenge
The 52-page brief in opposition, by Texas Solicitor General Kyle D. Hawkins, was filed on behalf of attorneys general from 18 states total, including Texas, Florida and Georgia.
Read the brief:
The Supreme Court appeal concerns a ruling by the the U.S. Court of Appeals for the Fifth Circuit, which found that the individual mandate to purchase health insurance—which the Supreme Court upheld in 2012 as a constitutional tax—was no longer constitutional because Congress in 2017 zeroed out the tax penalty for not having insurance.
The Fifth Circuit panel decision largely affirmed a ruling in December 2018 by U.S. District Judge Reed O'Connor of the Northern District of Texas, but sent the case back to O'Connor to decide whether Congress intended other provisions of the law to remain operable.
Although the Democratic states and U.S. House asked the Supreme Court to expedite the appeal, the justices declined to do that, which means no ruling will come out ahead of the 2020 election in November. The stance of the Trump administration and a coalition of Republican states is that the whole Affordable Care Act is unconstitutional.
The Texas opposition brief said that the Fifth Circuit was correct to hold that the Republican states, and two individual plaintiffs, had suffered harm from the Affordable Care Act's individual mandate, which would give them standing to sue over the act. Texas also argued that the Fifth Circuit correctly held that the individual mandate, with no tax penalty, was unconstitutional, said the brief.
On the other hand, the Texas-led coalition argued that the Fifth Circuit should have been the one to decide whether the unconstitutional individual mandate could be severed from the rest of the Affordable Care Act. But it was "hardly indefensible" that the Fifth Circuit would remand the case to the district court to go line-by-line and answer that severance question, and find a remedy, the brief said.
"The Fifth Circuit has ordered this case to return to district court to determine which, if any, provisions of Obamacare are still valid notwithstanding the unconstitutional mandate. That is where this case belongs at this time," said Texas Attorney General Ken Paxton in a statement. "I applaud the Fifth Circuit for upholding the core principle that the federal government cannot order private citizens to purchase subpar insurance that they don't want. I look forward to demonstrating exactly how this law has failed in district court."
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Angela Morris
Angela Morris is ALM Media's Texas litigation reporter. She covers lawsuits in all levels of Texas state and federal courts. Based in Austin, Morris earned journalism and government degrees from the University of Texas at Austin in 2006, and since then, has worked primarily as a reporter and writer, but also has skills in videography, photography and podcasts. Follow her on Twitter at @AMorrisReports.
