U.S. solicitor general's office, Washington, D.C. (Photo: Mike Scarcella/ ALM)

The U.S. Supreme Court on Tuesday refused to speed up its review of the constitutionality of the Affordable Care Act, rejecting requests by the U.S. House and a coalition of Democratic-led states that wanted the court to hear the dispute this term as the Trump administration and a host of Republican-led states move to dismantle the law.

The justices' decision on timing makes it unlikely the high court will hear and issue a decision on the health insurance law before the November presidential election. The Trump administration's Justice Department had argued that there was no rush to consider the law's fate, a potentially politically divisive issue for the Republican Party and more broadly the 2020 election.

The court, without comment, denied requests by the U.S. House and a coalition of 16 Democratic-led states that wanted the justices to expedite their review of a decision last month by the U.S. Court of Appeals for the Fifth Circuit. A divided panel ruled 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 failure to have insurance.

The panel decision largely affirmed a ruling in December 2018 by U.S. District Judge Reed O'Connor in Texas. But the appellate panel sent back to O'Connor the question of whether Congress intended other provisions of the law to remain operable. O'Connor had earlier decided that the mandate was so central to the law that the entire law must fall.

If the entire Affordable Care Act is unconstitutional, as argued by the Trump administration's Justice Department and the Republican coalition, the law's insurance coverage would end for an estimated 20 million people, including protection for people with preexisting conditions, the Medicaid expansion in many states, coverage for young persons up to age 26 on their parents' plans, subsidies for low-income people and a host of other wide-ranging changes.

Douglas Letter, general counsel to the U.S. House of Representatives, Washington, D.C. (Photo: Jason Doiy/ALM)

The Fifth Circuit's decision "poses a severe, immediate, and ongoing threat to the orderly operation of healthcare markets throughout the country, casts doubt over whether millions of individuals will continue to be able to afford vitally important care, and leaves a critical sector of the nation's economy in unacceptable limbo," House general counsel Douglas Letter told the justices. Letter is assisted by Munger, Tolles & Olson partner Donald Verrilli Jr. and Elizabeth Wydra of the Constitutional Accountability Center.

But U.S. Solicitor General Noel Francisco countered in his response  that the Fifth Circuit's decision did not "definitively" resolve any question of practical significance.

The appeals panel, Francisco told the justices, sent the case back to the district court to determine whether the mandate and other provisions could be severed from the law. The House's reason for speeding up proceedings, Francisco wrote, "at bottom, is that the vitality of the ACA's myriad provisions is too important to be left unresolved. But definitive resolution of that issue will be facilitated, not frustrated, by allowing the lower courts to complete their own consideration of the question."

The Justice Department argued initially that only those provisions closely tied to the mandate—for example, the requirement to sell coverage to people with preexisting conditions and not to charge them more—should be struck down with the mandate. But when ACA defenders appealed, the administration changed its position to support the GOP challengers' argument that the entire law must fall.

The justices on Friday did agree to hear another Obamacare case, taking up a dispute over a Trump administration rule expanding the types of employers who can claim religious exemptions from providing contraceptive coverage. A decision in that case is expected by June.

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