Supreme Court will hear a third Obamacare appeal — this time from California Democrats trying to save it

Chief Justice John Roberts, from left, and Justices Stephen Breyer and Elena Kagan
Supreme Court Chief Justice John G. Roberts Jr., left, Justices Stephen G. Breyer and Elena Kagan listen as President Trump delivers his first State of the Union address in 2018.
(Win McNamee / Associated Press)

The Supreme Court announced Monday it will hear an election-year challenge to Obamacare in which California Democrats are defending the law against a suit backed by President Trump and Texas Republicans.

Twice before the high court has upheld the Obama-era healthcare law, with Chief Justice John G. Roberts Jr. casting the key votes with liberal justices to reject broad conservative challenges.

The justices said they would hear the new case this fall as voters are about to go to the polls. Democrats have been determined to keep a spotlight on the continuing effort by Trump and the Republicans to throw out the Affordable Care Act, including its protections for tens of millions of Americans with preexisting medical conditions. The 2010 law also expanded Medicaid coverage for low-income Americans and provided subsidies for those who need help to buy health insurance.


Democratic leaders welcomed the court’s intervention.

“Make no mistake: A big reason that the fate of these vital healthcare protections is in the hands of the Supreme Court is because congressional Republicans and President Trump support the lawsuit to take healthcare away and haven’t lifted a finger to stop it,” said Senate Minority Leader Charles E. Schumer (D-N.Y.) in a statement.

The court granted the appeal by California Atty. Gen. Xavier Becerra. “As Texas and the Trump administration fight to disrupt our healthcare system and the coverage that millions rely upon, we look forward to making our case in defense of the Affordable Care Act. American lives depend upon it,” he said in a statement.

The high court is not likely to hand down a decision until early next year, but Democratic activists said the case itself will amplify the political stakes.

“A Supreme Court oral argument about the future of Obamacare, possibly in October right before the election, will put Trump’s plan to throw millions off their insurance front and center and make Supreme Court voters out of millions of people,” said Brian Fallon, executive director of Demand Justice and former press secretary to Democratic presidential candidate Hillary Clinton, in a tweet.

Highlighting the nation’s divide between red states and blue states, the new case is called California vs. Texas. On one side defending the law are California and 19 Democratic-led states, while Texas and 16 other Republican-led states are seeking to have the law struck down.

The Trump administration supported Texas, and its lawyers urged the Supreme Court to turn away the appeal.

At issue now is whether the healthcare law is unconstitutional because the Republican-controlled Congress voted in 2017 to stop applying a tax penalty required under the act on those who do not have insurance.


Texas Atty. Gen. Ken Paxton asserted, and a federal judge in Ft. Worth agreed, that the entire law must be voided. They theorized that the so-called mandate to buy insurance was an essential element of the law, and that by reducing the penalty to zero, Congress had effectively struck down the entire statute.

Trump’s lawyers later joined the case and endorsed this theory that the entire law must fall, despite strong criticism from legal experts on the left and right. Republican efforts to repeal Obamacare, including popular provisions like the protections for preexisting conditions, helped Democrats take back the House in 2018, and they plan to make healthcare an issue in 2020.

Becerra stepped in to defend the law after the Justice Department refused to do so. When Democrats took control of the House, their lawyers also joined in defense of the law.

For all of last year, the case sat before the 5th Circuit Court in New Orleans. A three-judge panel, with two Republican appointees and one Democratic appointee, heard arguments in July and finally handed down an inconclusive ruling in late December. Judges Jennifer Walker Elrod and Kurt Engelhardt agreed the mandate was now void and unconstitutional, but they sent the case back to the district judge in Ft. Worth to reconsider whether other parts must be voided as well.

In dissent, Judge Carolyn Dineen King said the status of the so-called mandate was nothing but an “academic curiosity,” with no practical consequence. “People can purchase insurance — or not — as they please,” she wrote.

In January, Becerra appealed and urged the justices to bypass the appeals court and to hear the case on a fast track so a ruling could be issued by summer. The court turned down the request to decide quickly.


It would have taken five votes within the court to hear the appeal on an expedited basis, but only four votes to grant review. It’s possible the chief justice and his four fellow conservatives were not in favor of deciding the case on a fast track this term, but the four liberal justices voted to hear the appeal during the fall, knowing that Roberts has already voted twice to uphold the law.