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US states, lawmakers ask Supreme Court to review Affordable Care Act case
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US states, lawmakers ask Supreme Court to review Affordable Care Act case

Twenty states and the District of Columbia as well as Democratic members of the US House of Representatives filed two petitions Friday urging the Supreme Court to uphold the Affordable Care Act.

The petitions are in response to a Fifth Circuit decision in December that upheld an action by Congress to take the alternative tax for not purchasing insurance to zero, essentially rendering the individual mandate unenforceable.

Led by the state of California’s Attorney General, Xavier Becerra, the statess petition argues, “The [Fifth Circuit] panel majority’s flawed approach to severability, coupled with its mistaken analysis of standing and the merits, casts doubt on the fate of a landmark statute on which millions of Americans depend. The questions presented by this petition are purely legal, of enormous practical importance, and fully ripe for review by this Court.”

The Affordable Care Act provided that if an individual did not purchase health insurance, then he or she would be subject to an alternative tax. This scheme provided incentives to individuals to purchase health insurance. As part of the Tax Cuts and Jobs Act, Congress reduced to zero the amount of the tax imposed on those who do not have health insurance, effective January 1, 2019. Two months after the Tax Cuts and Jobs Act was passed, two private plaintiffs and a group of states argued that reducing the tax to zero rendered the provision “unconstitutional on the ground that it could no longer be construed as part of a tax,” and invalidated the rest of the Affordable Care Act because the minimum coverage provision was “essential to and inseverable from” the rest of the Act.

In its decision, the Fifth Circuit affirmed the lower court’s decision that the amendment could no longer be construed as part of Congress’ taxing power because it created no revenue, however, the Fifth Circuit remanded the severability decision back to the lower court to analyze the act with a “fine-tooth comb.”

The petitions say, “The court of appeals’ decision warrants immediate review. This Court normally grants certiorari when a lower court has invalidated a federal statutory provision on constitutional grounds, and that customary approach is especially appropriate here.” The petitions state that the Fifth Circuit’s remand provides an opportunity for the judicial body to do the “quintessentially legislative work” of “rewriting” statutes.

The states petitioning include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia and Washington, and Governor of Kentucky Andy Beshear, as well as the District of Columbia. The respondent states include Texas, Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah and West Virginia.

The petitioners asked for the justices to respond quickly. The justices could take action this week.