Affordable Care Act could end up back in court

WASHINGTON – A coalition of Democratic state attorneys general said Thursday they may ask the Supreme Court to save the Affordable Care Act – again.

The officials, led by California Attorney General Xavier Becerra, said a third trip to the Supreme Court in eight years may be necessary after a federal appeals court's ruling Wednesday that struck down the law's requirement that most consumers buy health insurance.

A panel of the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, sent the case back to a federal district court to decide whether other parts of the law can be saved without that requirement, called the individual mandate. The ruling leaves the law intact for now, with an uncertain future.

As a result, Becerra and other Democrats fighting to save President Barack Obama's top domestic policy achievement said the Supreme Court should save the Affordable Care Act – something the justices did in 2012 and again in 2015.

"Most of us believe that we have to address this uncertainty as quickly as possible," Becerra said in a conference call with several colleagues, including Kentucky Gov. Andy Beshear, a former attorney general. "We believe that it’s imperative to act swiftly.”

It would be unusual, but not unprecedented, for the Supreme Court to step in before lower courts complete their review. Becerra noted the justices have done it before, including this year, when they rejected the Trump administration's effort to add a question on citizenship to the 2020 census.

Michigan Attorney General Dana Nessel acknowledged that the high court might prefer to let the case percolate in district and appellate courts. The justices already face a high-powered docket on issues such as abortion, immigration, gay rights and gun rights.

Most recently, they agreed to hear three cases in which congressional and state investigators seek access to President Donald Trump's tax returns and financial documents.

Nessel said it is "more likely that they will allow the case to go back down to the district court." Becerra agreed it is “late in the season for the court to be accepting cases" for its current term, which ends in June.

To get the case before the Supreme Court this term, the attorneys general would need to send a petition in the next few weeks and ask the justices for an expedited review. The court's docket usually is full by the middle of January. After that, any cases granted review are scheduled for the next term, beginning in October.