In an unexpected step into a politically charged case, the Supreme Court announced on Friday that it would hear a lawsuit seeking to strip health care from millions of Americans. The Affordable Care Act gives states a choice whether they will set up their own health exchange where consumers can buy health insurance or whether to allow the federal government to do so for them. This lawsuit alleges that subsidies helping individuals buy health insurance are only available in exchanges run by a state, not by the feds. If it succeeds, the likely result will be a “death spiral” where higher premiums cause healthy consumers to drop out of the insurance market, which will cause higher premiums, which will cause more consumers to drop their insurance. Eventually, many states’ individual insurance markets are likely to collapse if this lawsuit prevails.
The Court’s decision to hear this case is surprising. Under the Supreme Court’s rules, the Court is particularly likely to hear a lawsuit when “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important manner.” Although such a split briefly existed before two courts, the United States Court of Appeals for the District of Columbia Circuit withdrew its opinion defunding much the law in September, thus obviating the primary reason for the Court to consider this case.
The Court’s rules also offer a vaguer reason why the justices may want to hear certain cases — when the case presents “an important question of federal law that has not been, but should be, settled by this Court.” In their petition asking the Court to take this case, the plaintiffs argued that such an important question exists because “[g]iven the self-evident enormous importance of the IRS Rule to the ongoing implementation of the ACA, to the immediate economic decisions of millions of Americans and thousands of businesses, and to the currently flowing billions of dollars in expenditures that the D.C. Circuit ruled illegal, the need for this Court’s review is plainly and uniquely urgent.” In essence, the plaintiffs argue that the Court must resolve this case immediately because a victory for the plaintiffs would be so disruptive that people need to know right away if it is going to happen.
The problem with this argument is that it proves far too much. As Mother Jones’s Stephanie Mencimer notes, “birther” plaintiffs challenging President Obama’s legitimacy as president made a very similar argument in urging the Supreme Court to hear their case:
If the President and Commander in Chief is ineligible for those offices, both our civilian and military sector need to know that as soon as possible. The President is the Commander in Chief of our military forces. Whether he is legitimate is also vital in maintaining the proper chain of command in our military and in giving legality to all military orders that emanate from him.
Since the President signs all acts passed by Congress into law, it is vitally important that the President be legitimately in power so as to give those laws domestic and international legality.
Indeed, there are all kinds of lawsuits which reach the Supreme Court asserting legal theories that, if adopted by the justices, would cause substantial disruption. Yet the Court has historically stayed clear of lawsuits alleging that the tax code is unconstitutional or that judges cannot decide civilian cases if their courtroom is decorated with a flag that has a yellow fringe. The mere fact that a lawsuit would create a crisis if it succeeds has never been sufficient reason for the justices to hear a case.
There is, however, another explanation for why the GOP-dominated Court may have decided to take this particular lawsuit — and it comes from the lead attorney for the plaintiffs. In an interview with Talking Points Memo’s Sahil Kapur, attorney Michael Carvin claimed that the justices aren’t “going to give much of a damn about what a bunch of Obama appointees on” the lower court that withdrew its decision defunding Obamacare decide. He added that he does not expect to “lose any Republican-appointed judges’ votes” on that lower court, and that he expects Republicans on the Supreme Court to fall in line as well. Though the Court’s decision to take this case cannot be explained under the Court’s normal practices, Carvin may be correct that it can be explained for purely partisan reasons.
Should the justices ultimately side with the doubtful legal arguments raised by the plaintiffs, however, they should have no illusions about what they will achieve. Thousands of Americans will die unnecessarily if the plaintiffs win this lawsuit. And they will die because of the votes of five justices.