Is the new Obamacare lawsuit headed to the Supreme Court?

Late Friday night, a district court in Texas ruled the entirety of Obamacare to be unconstitutional.

Where does the lawsuit go next? Depending on which news source you turn to, this nascent challenge to the Affordable Care Act is either dead in its tracks — certain to die on appeal — or a shoo-in for yet another Supreme Court case.

The New York Times, for example, writes that the lawsuit ”will almost certainly make its way to the Supreme Court, threatening the survival of the landmark health law.”

In the Washington Post, however, law professor Nicholas Bagley writes that “the 5th Circuit or the Supreme Court [aren’t] likely to have much patience for this partisan lawsuit” and made a similar argument about the case’s dim prospects on Twitter:

What do I think will happen next with the Texas lawsuit? I’ll put my cards on the table: I really have no idea. I think one of the reasons that you see such disparate predictions for Texas v. Azar is the fact that the history of Affordable Care Act litigation has been really unpredictable. Challenges that once seemed frivolous have ended up in front of the Supreme Court in the past. One of them — the challenge to the Medicaid expansion, which I’ll dive into a bit later — was even successful.

There seem to be lots of reasons why this case shouldn’t go very far. Bagley gets further into this in his Washington Post piece, making the case that this lawsuit is just different from the previous Obamacare challenges.

”The legal arguments in previous rounds of litigation over the ACA may have been weak, but they were not frivolous,” he writes. “This case is different; it’s an exercise of raw judicial activism. Don’t for a moment mistake it for the rule of law.”

In the New York Times, Yale University’s Abbe Gluck and Case Western Reserve University’s Jonathan Adler (the latter of whom, it’s worth noting, was an architect of the last Obamacare challenge to go to the Supreme Court), read the case similarly. They write that this case is different from other Obamacare challenges because of how it willfully ignores congressional intent:

Sometimes severability cases are difficult because it is hard to guess how much importance Congress attributed to one provision, especially in a lengthy law like the Affordable Care Act. But this is an easy case: It was Congress, not a court, that eliminated the mandate penalty and left the rest of the statute in place. How can a court conclude that Congress never intended the rest of the statute to exist without an operational mandate, when it was the 2017 Congress itself that decided it was fine to eliminate the penalty and leave the rest of the law intact?

Bagley, Gluck, and Adler are some of the smartest minds in health care law right now. They have all followed Obamacare litigation extremely closely, and they are among my most trusted guides to the onslaught of lawsuits. And they make me think there is a strong chance that this lawsuit does ultimately die in the Fifth Circuit Court of Appeals, the legal stop that stands between the district court and the Supreme Court.

At the same time, I’m still not quite convinced that we should be writing the challenge off altogether — mostly because we’ve seen other Obamacare lawsuits written off as “frivolous” only to become real threats to the law’s survival.

Jeffrey Toobin, for example, used the term to describe King v. Burwell, the most recent challenge to Obamacare to go to the Supreme Court. Paul Krugman described the arguments made in that suit as a “ridiculous claim.”

Ultimately, the Supreme Court decided in the Affordable Care Act’s favor in King v. Burwell. The law stood intact after that hearing. But there is one other case I think is worth looking back at: the Supreme Court’s decision to make Medicaid expansion optional in NFIB v. Sebelius. That is also the decision that upheld the individual mandate.

That lawsuit argued that the federal government didn’t have the authority to compel all states to expand Medicaid to millions of low-income Americans. The argument wasn’t really taken that seriously at the time — besides, most observers were laser-focused on the companion challenge to the individual mandate’s constitutionality.

In a surprise move, the Supreme Court upheld the individual mandate but struck down the Medicaid expansion as a required program. Instead, it said that states would get to decide whether to participate. This was really unexpected. Here’s how health care expert Sara Rosenbaum later described it in an article for Health Affairs:

But in a move that shocked almost everyone, seven justices, led by Chief Justice John Roberts, placed limits for the first time on Congress’s power to spend money to induce state action. Equally remarkably however, five justices, also led by Chief Justice Roberts, concluded that instead of jettisoning the Medicaid expansion or the Affordable Care Act in its entirety, the proper remedy was simply to limit the federal government’s power to enforce state compliance. Propelled by Medicaid, the Court entered new constitutional territory whose parameters have yet to be determined, even as it saved the act’s central federal Medicaid investment. Virtually nobody foresaw this outcome: not health law scholars immersed in the Affordable Care Act, not constitutional professors steeped in Commerce Clause precedents, and not Court watchers who had parsed the oral arguments.

A lot of the arguments I’ve read around Obamacare litigation contain phrases like “it would be unprecedented if a court ruled this way.” This is usually meant to signal why a case won’t be successful — it just isn’t in keeping with how rulings usually go.

There are lots of reasons to think that the health law professors will end up being right in their predictions. This is the rare case, for example, where even many scholars who oppose Obamacare think the argument is bunk. Even if it does reach the Supreme Court, it’s worth noting that all five justices who voted to uphold the individual mandate are still in their seats.

But I don’t think this should preclude the possibility that these predictions could be wrong. Obamacare litigation, after all, has proven to be anything but predictable.

This story appears in VoxCare, a newsletter from Vox on the latest twists and turns in America’s health care debate. Sign up to get VoxCare in your inbox along with more health care stats and news.

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