Attorney General Becerra Leads Coalition Seeking Supreme Court Review of ACA Repeal Case
Friday, January 3, 2020
SACRAMENTO – California Attorney General Xavier Becerra today, leading a coalition of 20 states and D.C., filed a petition to the U.S. Supreme Court seeking review of the Fifth Circuit’s recent decision in Texas v. U.S. The decision held the individual mandate of the Affordable Care Act (ACA) unconstitutional and called into question whether the remaining provisions of the ACA could still stand, including those that protect and provide coverage to Americans with pre-existing conditions. Because this decision causes uncertainty that may harm the health of millions of Americans, as well as doctors, clinics, patients, and the healthcare market, Attorney General Becerra and his coalition are petitioning the Supreme Court to take up the case and resolve it before the end of the Court’s current term in June.
Having stated the above, the ACA is still indeed very much in jeopardy. Going forward, the case will follow one of two possible routes:
Officially, it's supposed to go back to the judge who ruled against the ACA in the first place a year ago to "reconsider" which parts of it can be "saved"...after which it would then go back to the 5th Circuit Court of Appeals, and then to the U.S. Supreme Court. That full process could take well over a year.
However, it's possible that the Supreme Court will intervene and agree to take the case up instead of it going to the original judge first, which is what the defending states are now requesting. This full process...could still take up to a year, although it's conceivable that a final ruling would be issued before the election.
Well, as if Impeachment Day wasn't tense and historic enough already, the 3-judge panel of the 5th Circuit Court of Appeals has finally issued their decision on the Texas vs. U.S. (aka Texas vs. Azar, aka Texas Fold'em) lawsuit intended to strike down the entire Affordable Care Act:
Before KING, ELROD, and ENGELHARDT, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge:
The GOP has spent a solid decade trying to tear down the Patient Protection & Affordable Care Act. They started even before the bill was passed or signed into law, of course, which is why it ended up passing without a single Republican vote in either the House or Senate. After that, they filed lawsuit after lawsuit (a handful with merit, others utterly baseless, such as the current one, which may have the thinnest case in history to ever make it so far in federal court), while simultaneously voting to repeal the ACA either partly or fully dozens of times.
As my regular readers know, I've been a strong proponent of encouraging states to pass laws locking in as many ACA "blue leg" protections as possible in the event that the ACA itself is actually struck down by the idiotic #TexasFoldEm lawsuit (again: the ruling by the 5th Circuit Court of Appeals is due to drop at any time).
However, I've also tried to make it clear that there would be a trade-off involved: If you're going to lock in all of those "Blue Leg" protections (Guaranteed Issue, Community Rating, Essential Health Benefits, No Annual/Lifetime Caps, etc), that will mean that the premiums/deductibles will be higher than they are without those protections.
This is precisely why so-called "short-term, limited duration" policies (aka #ShortAssPlans) and other non-ACA compliant policies cost so much less at the front end...they cherry pick their enrollees and don't cover the more expensive treatments many people require.
Personally, I still think states should lock in those protections anyway, since there's only two ways this can play out:
How Pending Decision on Obamacare Could Upend 2020 Campaign
A federal appeals court’s ruling on the Affordable Care Act could be a huge headache for the president and take Democrats’ focus off Medicare for all.
A federal appeals court in New Orleans is preparing a ruling on the Affordable Care Act that could put the law’s future front and center in the presidential race, overwhelming the current Democratic debate over Medicare for all and reigniting the health care-driven worries that helped Democrats win back the House last year.
Long-time readers may remember that back in June 2018, the Trump Administration's Justice Dept. threw all precedence, decency and logic out the window by not only refusing to defend against the idiotic "Texas vs. Azar" lawsuit (aka #TexasFoldEm) brought by 20 Republican state Attorneys General...but went even further by actually agreeing with the plaintiffs that the Patient Protection & Affordable Care Act--which is, remember, the federal law of the land which the DoJ is supposed to defend--is unconstitutional.
At the time, there was one strange thing which was buried within the ugly implications of such a complete abdictation of duty by then-U.S. Attorney General Jeff Sessions: While the Trump DoJ did side with the plaintiffs on the case, they split from the plaintiffs as to what they thought the actual "solution" to the "problem" should be.
Regular readers may have noticed that this is my first blog entry in several days, which is unusual for me. I admit I've been mesmerized by the dramatic Trump/Ukraine/Impeachment saga which has exploded over the past few days.
The irony of this, of course, is that the 800 pound gorilla in the room is the pending #TexasFoldEm lawsuit decision by the 5th U.S. Court of Appeals, which could potentially tear down the entire Affordable Care Act...and their decision in the case is expected to be released any time over the next five weeks...just ahead of the 2020 Open Enrollment Period.
The Health 202: White House may have given up on health plan it says it is writing
A former White House staffer and several congressional aides and activists say they’ve been told the Trump administration has moved away from seeking an Obamacare replacement and is instead focused on damage control should a judge rule next month to topple the entire law.
Now, DOJ is changing its position again. In supplemental briefings to the Fifth Circuit Court of Appeals, DOJ states that any invalidation of the ACA should “not extend beyond the plaintiff states….” As a remedy, DOJ argues that the court should invalidate the ACA only in the states that brought suit. In effect, if the court were to follow DOJ’s scheme it would mean striking down the ACA in the eighteen plaintiff states, but allowing it to remain intact in the thirty-two other states.
Last summer, there was a hell of a bombshell dropped on the judicial system when the U.S. Dept. of Justice, under then-Attorney General Jeff Sessions, announced that instead of defending the Affordable Care Act against the Texas vs. U.S. lawsuit (which is their job, after all), they were effectively throwing the case by not only refusing to defend the law in court, but actively agreeing with the plaintiffs that the absurd premise of their lawsuit was correct:
They also attempted to calculate how much federal funding every state would lose each year if the ACA were to be repealed. Nationally, they concluded that the U.S uninsured rate would increase by nearly 20 million people, while the 50 states (+DC) would collectively lose out on nearly $135 billion in federal funding.
I'm happy to report that our panel did indeed make the final cut, and will be happening this Friday, July 12th:
FIX THE DAMN HEALTHCARE: SORTING OUT ACA 2.0, MFA, MED4AM AND MORE!
Friday, Jul. 12 4:30 PM, Room: 118C
The healthcare landscape is confusing and exciting in 2019. Reining in Big Pharma, strengthening the ACA, adding public options, “Medicare for America” or “Medicare for All”… the alphabet soup of plans can be confusing. Can improvements be implemented before 2021 at the federal level or is it all up to the states? And what about the latest lawsuit looming over everything? We’ll go beyond the slogans and into the details: How are the proposals similar and different, and what do patients, caregivers and other invested parties think.
The Justice Department nonetheless thinks that neither the House of Representatives nor the blue states have standing. And if the Fifth Circuit dismisses the appeal, the Department says that O'Connor's opinion should *not* be vacated.
Significantly, the Justice Department now says that it will continue to enforce the ACA "pending a final judicial determination of the constitutionality of the individual mandate as well as the severability of the ACA's other provisions."