On Monday, March 2, 2020, the United States Supreme Court granted certiorari in the consolidated cases of Texas v. California and California v. Texas, both of which address the Fifth Circuit’s decision to strike down the individual mandate to the Patient Protection and Affordable Care Act (ACA), while sending back to the district court the question of the overall law’s constitutionality.

The Supreme Court previously upheld the ACA’s individual mandate, which imposed a monetary penalty for failing to maintain health insurance, as a tax in 2012 by a 5-4 decision. Nevertheless, after Congress changed the law so that no monetary penalty arose from failing to abide by the individual mandate, the State of Texas (joined by other states) challenged the ACA again, winning a 2-1 Fifth Circuit decision in late 2019.

Specifically, the Fifth Circuit held that the individual mandate was unconstitutional, and remanded to the district court to determine whether the mandate was severable from the remainder of the ACA, or if the rest of the ACA was automatically invalidated as well.[1] This decision has come under intense criticism by some states, health care groups, and others who want to see the Supreme Court address the issues squarely, once and for all.

Consequently, the U.S. House of Representatives and a coalition of states lead by California filed a petition for the Supreme Court to intervene before the district court could make its decision. Meanwhile, the Texas-led coalition of challengers, along with the U.S. Department of Justice, opposed review by the higher court.

The Supreme Court’s grant of certiorari in this case sets up a tense election-year battle. The makeup of the Supreme Court has changed since its 2012 decision upholding the ACA, but the five-justice majority in that case is still intact. It remains to be seen whether the Supreme Court truly wishes to revisit (and possibly reverse) its 2012 decision, based on the new elements of the ACA, or whether it simply wants to short-circuit anticipated errors in the district court remand.

Oral arguments will take place in the Fall.