The never-ending Obamacare litigation chugs along. Back in July 2014, West Virginia challenged the legality of the so-called administrative fix, which allowed insurers to continue offering plans that were otherwise void under the Affordable Care Act’s mandates. Both the district court and the D.C. Circuit dismissed the case on standing grounds. In November, West Virginia filed a petition for a writ of certiorari. Yesterday, the Court called for a response.
Unless Acting SG Gershengorn decides to scramble a BIO in eight days (I’ve seen crazier pleadings), responding to this petition will fall to President Trump’s Justice Department. I’ve written at length that the new government should repudiate the various illegal delays, modifications, and suspensions of the Affordable Care Act. This brief in opposition offers an opportunity to do so. For institutional reasons, the SG is unlikely to agree that the state has standing, but this brief can be used to assert that the policy has been (hopefully) repudiated because, “on further reflection,” the government has decided it is unlawful.
Even if the government does not take this step, there may be questions about mootness. West Virginia addresses this issue on the final two pages of their cert petition:
Even if the new Administration were to rescind the Administrative Fix or if the Affordable Care Act were to be repealed in whole or in part, the D.C. Circuit’s decision cannot be permitted to stand. As a threshold matter, the underlying issue would arguably fall within an exception to mootness. The practice of claiming enforcement discretion to entirely suspend federal laws for temporary periods of time is likely to recur and continue to escape review. See Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016). Moreover, the voluntary cessation of challenged conduct “does not ordinarily render a case moot.” Knox v. Serv. Employees Int’l Union, Local 1000, 132 S. Ct. 2277.
But more importantly, even if this Court were to determine that the matter has become moot or that mootness should be evaluated in the first instance by the D.C. Circuit, this Court should still grant certiorari and vacate the decision below before remanding for further consideration. The clear conflicts between the D.C. Circuit’s decision and several of this Court’s precedents, together with the decision’s potentially significant impact on federal- state relations, require that this Court take at least those steps to ensure consistency and protect our system of dual sovereignty.