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4 States Seek to Join Coalition Defending ACA on Appeal

Analysis  |  By Steven Porter  
   February 01, 2019

If the court grants the request, there will officially be more states defending the ACA in this lawsuit than opposing it.

Four state attorneys general sought formal permission Thursday to join the California-led coalition of Democratic states defending the Affordable Care Act against a legal challenge.

If the court grants the request from Colorado, Michigan, Nevada, and Iowa, then the coalition will grow to include 20 states, plus the District of Columbia. That would make the California-led coalition of states defending the ACA bigger than the Texas-led coalition of states suing to overturn the Obama-era law.

In a motion filed with the Fifth Circuit Court of Appeals, where justices are reviewing a lower court's decision declaring the entire ACA invalid, the four states argued that their motion to intervene is timely because three of them—Colorado, Michigan, and Nevada—had newly elected attorneys general take office in recent weeks.

Colorado Attorney General Phil Weiser, Michigan Attorney General Dana Nessel, and Nevada Attorney General Aaron Ford had already announced before taking office last month that they intended to join the ACA suit.

Voters in the fourth state, Iowa, reelected Attorney General Tom Miller by a wide margin last fall, as The Des Moines Register reported. Miller began his 10th term last month as attorney general. A spokesperson for Miller's office told HealthLeaders that the timing of Miller's decision to join the suit had nothing to do with the election, noting that Iowa has joined other ACA lawsuits in recent years.

There were 20 states named among the plaintiffs in the Texas-led lawsuit filed nearly a year ago, but two of those states—Maine and Mississippi—were represented by their governors, not their attorneys general. The Maine Attorney General's Office has since clarified that the state itself is not a party to the suit because then-Gov. Paul LePage lacked authority to enter litigation on Maine's behalf when he signed onto the ACA suit. The Mississippi Attorney General's Office similarly holds that Gov. Phil Bryant is participating in the suit as an individual.

Furthermore, last fall's midterm elections flipped the governorship and attorney general's office in Wisconsin from Republican to Democrat. Newly elected Wisconsin Attorney General Josh Kaul had signaled his intent to withdraw his state from the list of plaintiffs in the ACA challenge, with the support of new Gov. Tony Evers. The state's Republican-controlled legislature, however, blocked Kaul from doing so, as Kaul himself acknowledged last week in a letter to Evers.

That leaves 18 plaintiff states (including Wisconsin) and potentially 20 states, plus D.C., intervening as defendants in the Texas-led ACA challenge.

Expedited Appeal Requested

California Attorney General Xavier Becerra requested in a filing Friday that the Fifth Circuit expedite its review of "this exceptionally important case," arguing that 

"The ACA restructured nearly one-fifth of the nation's economy and is a central pillar of our healthcare system," Becerra wrote.

"A wide range of fiscal, regulatory, and individual decisions depend on the outcome of this appeal," he added.

The filing asks the court to set a deadline of March 29 for opening briefs, and it doesn't object to the defendants's request for oral arguments to be held the week of July 8.

Maryland's Suit Dismissed

A separate lawsuit filed by Maryland in an effort to head off the Texas case was dismissed Friday for lack of standing.

Even though President Trump's "profound disdain for the ACA cannot be seriously disputed," one cannot reasonably infer that the Trump administration will end its enforcement of the ACA in whole or in part, U.S. District Judge Ellen Lipton Hollander wrote.

"Neither the President's zealous attempts to repeal the statute, nor his derisive comments about it, support an inference that he will fail to enforce the law," Hollander wrote.

If the administration were to abandon the ACA, then Maryland would be allowed to re-file its lawsuit.

Editor's note: This story was updated Monday, February 4, 2019, with additional information.

Steven Porter is an associate content manager and Strategy editor for HealthLeaders, a Simplify Compliance brand.


Democratic attorneys general in Colorado, Michigan, Nevada, and Iowa asked to join the California-led coalition of states defending the Obama-era law.

The coalition moved to expedite appellate proceedings in the Fifth Circuit, with a briefing deadline in March and oral argument in July.

Maryland's separate lawsuit to uphold the ACA was dismissed for lack of standing.

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