The Courts (Washington Update, January 9, 2019)

Update on Texas v. Azar — Challenge to the ACA
As reported in the last Update, in December a federal district court held that the entire ACA is unconstitutional in Texas v. Azar (also known as Texas v. United States), a case brought by the attorneys-general in 20 Republican-led states . See Texas Judge Strikes Down ACA as Unconstitutional, But Long Legal Path Remains (FierceHealthcare, Friday, 12/14/18). The court “stayed” the ruling so that the ACA remains fully in effect pending appeals. On January 8, the Department of Justice asked for a delay in proceedings due to the government shut-down.

Attorneys-general from 17 Democratic-led states and DC have been granted the right to intervene as parties to the case, arguing that the entire law should be upheld, and have filed an appeal with the U.S. Court of Appeals for the 5^th Circuit. The Department of Justice also appealed since it does not agree with the district court that the entire ACA should be repealed, even though the administration has chosen not to defend major parts of the law.

In the past week, Democrats in the House of Representatives filed motions in the district court and appeals court to intervene as parties in the case in support of the ACA. See House Formally Moves to Intervene in Obamacare Lawsuit (The Hill, 1/4/19). For legal details see Latest Enrollment Numbers; Dem States, DOJ Appeal Texas to 5th Circuit (Health Affairs blog, 1/7/19).

It could take many months for the appeals court to act, and then the case might be taken up by the Supreme Court, which would not be able to hear the case until its October 2019 term at the earliest. In theory, Congress could amend the ACA in order to make the case moot before it reaches that point. Congress Could Get Rid of ACA Lawsuit, But Won’t (Axios, 12/18/18).