In late 2019, the U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s ruling in Texas v. Azar that the Patient Protection and Affordable Care Act (ACA) individual mandate is an unconstitutional exercise of Congress’s Tax Power. However, the Fifth Circuit disagreed with the lower court’s analysis that supported invalidating the entire ACA. In its ruling, the Court of Appeals instructed the lower court to reexamine whether the individual mandate is severable from the ACA using a more granular analysis. On January 3, 2020, a coalition of state attorneys general requested that the Supreme Court of the United States expeditiously review the Court of Appeals’ ruling before the lower court issues another opinion. If the Supreme Court grants the case expedited review, it will decide the case before the end of the upcoming term, in June 2020.
On January 10, 2020, Noel Francisco, the U.S. Solicitor General, filed a brief with the Supreme Court, urging the Court not to grant expedited review of Texas v. Azar until the District Court reevaluates whether the individual mandate is severable from the rest of the ACA. The Solicitor General asserts that no emergency exists that would warrant expedited review. Additionally, Solicitor General Francisco argues that granting expedited review would require the Supreme Court to consider several issues that the District Court has not examined, which the Supreme Court does not generally do. Regarding this, the Solicitor General states that “if the Court were to grant review of the severability question,” that the Court would be required to “confront the severability of statutory provisions spanning 900 pages without the benefit of any decision from the Court of Appeals on that question, or of a decision from the district court.”
The Supreme Court will likely decide whether to review the Texas v. Azar in the coming weeks. Stay tuned for additional updates.