Understand how we got here — and how to move forward.


April 3, 2019

Why 2 Republican AGs just urged an appeals court to save the ACA

Daily Briefing

    The 5th U.S. Circuit Court of Appeals, which is considering a case that could invalidate the Affordable Care Act (ACA), this week received a flurry of briefs—including one from two Republican state attorneys general (AGs)—urging the court to uphold the health reform law.

    Your cheat sheets for understanding health care's legal landscape

    The briefs come as President Trump and GOP congressional leaders work to establish their plan of action if the case challenging the law ultimately reaches the Supreme Court, and the law is struck down.

    About the case

    The case, which was filed in February 2018 by a group of AGs from 20 Republican-led states, centers on the argument that a 2017 tax reform law invalidated the ACA's individual mandate by zeroing out the tax penalty for remaining uninsured. Further, the GOP AGs argue that the ACA cannot be severed from the individual mandate, meaning the entire health reform law is unconstitutional.

    U.S. District Judge Reed O'Connor in December 2018 agreed with the plaintiffs and ruled that eliminating the individual mandate's tax penalty rendered the mandate unconstitutional, and without the individual mandate the entire ACA must be struck down.

    But Democratic AGs from 18 states and the District of Columbia, which are defending the ACA in the case, appealed O'Connor's ruling to the 5th U.S. Circuit Court of Appeals. The parties in the suit last week filed their initial briefs with the appeals court—and the Department of Justice (DOJ) in its brief said it now agrees with O'Connor's ruling that the entire ACA should be struck down along with the individual mandate. Previously, DOJ argued striking down the individual mandate should not invalidate the entire law.

    Republican policymakers call on appeals court to uphold ACA

    On Monday, Republican AGs from Montana and Ohio filed amicus briefs in the case urging the federal appeals court to uphold the ACA. Montana AG Tom Fox (R) and Ohio AG David Yost (R) in the brief claimed the lower court "exceeded its power by striking down the [ACA] in full."

    Fox and Yost wrote that they agree the ACA's individual mandate is unconstitutional, but argued that the mandate should be severed from the health reform law. They noted that Congress effectively severed the individual mandate from the law when it passed the 2017 tax reform law. "No sound application of neutral rules and precedents—whether based on the Constitution's original public meaning or Supreme Court precedent—could lead a court to strike down an entire congressional act based on the unconstitutionality of a single, inoperative provision within it," they wrote, adding, "Congress would have been crystal clear if it had wanted to do something as extreme as making the entire [ACA] rise or fall with the constitutionality of a completely inoperative provision."

    Separately, Sen. Susan Collins (R-Maine) in a letter sent Monday urged U.S. AG William Barr to defend the ACA in the lawsuit. Collins wrote that she is in "profound disagreement" with DOJ's decision to side with the lower court, adding that DOJ's stance places a number of the ACA's "critical consumer provisions" at risk. Collins wrote Congress had not intended to have the law's protections for individuals with pre-existing conditions "stand or fall together with the individual mandate," when it passed the 2017 tax reform law.

    Hospital, patient groups urge court to rule in favor of ACA

    Dozens of health care industry and patient advocacy groups also filed amicus briefs asking the appeals court to reverse the lower court's ruling, HealthLeaders Media reports.

    America's Essential Hospitals, the American Hospital Association, the Federation of American Hospitals, and other hospital groups in a brief argued that "tens of millions of patients [could] lose their health insurance, returning them to the ranks of the long-term uninsured and putting their health at risk" if the ACA is struck down. The groups wrote that the ACA's invalidation "would be disastrous" for U.S. residents who have benefited from the health care law's "expanded health-insurance coverage, the birth of a stable individual-insurance market, an expanded Medicaid safety net, and many other protections."

    In a separate brief filed Monday, 24 state hospital associations argued that striking down the ACA would "wreak havoc in health care delivery in this country and subvert the will of Congress." The associations wrote that the ACA's individual mandate can be severed from the health reform law.

    Republicans postpone ACA repeal and replace talks until after 2020 presidential election

    Many observers also have noted that Republicans do not currently have a health reform plan that could replace the ACA if it is ultimately struck down. Trump last week took some Republicans by surprise when he assured reporters that Republican lawmakers would come up with a plan to replace the ACA if it is invalidated by the courts.

    Several high ranking Republican lawmakers said there was no such plan in the works and, according to the Associated Press, Senate Majority Leader Mitch McConnell (R-Ky.) on Monday told Trump the Senate would not take up such a plan until after the 2020 general election.

    According to AP, that meeting preceded a tweet in which Trump appeared to walk back his comments on when a new GOP plan to repeal and replace the ACA could be ready.

    Trump in the tweet wrote that a vote on a plan to replace the ACA "will be taken right after the election when Republicans hold the Senate [and] win back the House." He added that Republicans are developing a plan "with far lower premiums … [and] deductibles than" plans available under the ACA (Pierson, Reuters, 4/1; Weixel, The Hill, 4/1; Anapol, The Hill, 4/1; Baker, "Vitals," Axios, 4/2; Commins, HealthLeaders Media, 4/1; Cohn, The Hill, 4/1; Holland, Reuters, 4/1; Forgey/Bresnahan, Politico, 4/1; Mascaro/Lucey, AP/Chicago Tribune, 4/2).

    Cheat sheet: What you need to know about the ACA


    The Patient Protection and Affordable Care Act, otherwise known as the ACA, is the comprehensive health care reform bill passed by Congress in March, 2010. The law reshapes the way health care is delivered and financed by transitioning providers from a volume-based fee-for-service system toward value-based care.

    Download the ACA cheat sheet to get a quick overview of this significant U.S. health care legislation.

    Get the Cheat Sheet

    Have a Question?


    Ask our experts a question on any topic in health care by visiting our member portal, AskAdvisory.