Appeals Court to Hear ACA Oral Arguments This Week

Although a decision by the 5^th U.S. Circuit Court of Appeals could take months, the outcome is expected to be appealed to the U.S. Supreme Court.

A three-judge federal appeals court is set this week to hear oral arguments in a case that will determine the future of the Affordable Care Act.

Although a decision by the New Orleans-based 5^th U.S. Circuit Court of Appeals could take months, it is expected that, whatever the outcome, the ruling will be appealed to the U.S. Supreme Court.

In 90 minutes of oral arguments scheduled for Tuesday, a Texas-led coalition of 18 plaintiff states is expected to urge the appellate court to uphold U.S. District Judge Reed O'Connor's ruling in December that invalidated ACA.

O'Connor had agreed with the plaintiff states that the law was nullified in its entirety when Congress zeroed-out tax penalties for the individual mandate in 2017.

In asking the appellate court to overturn O'Connor's ruling, the U.S. House of Representatives and a California-led coalition of 20 intervening states and the District of Columbia are expected to argue that the individual mandate is clearly severable from the ACA.

In addition to hearing oral arguments on the merits of the appeal, however, the appellate court is expected also to take up the legal standing of the intervening states.

The intervening states argue that, if O'Connor's ruling was allowed to stand, it would eliminate the Medicaid expansion under the ACA and would cost them about $418 million over a decade. The intervening states also argue that more than 20 million people will lose healthcare coverage gained through the Medicaid expansion and Marketplace individual policies if the ACA is nullified, and that important safeguards, such as a ban against pre-existing conditions, would be eliminated.

Last week, the appeals court rejected a request by the plaintiff states to delay the oral arguments for at least 20 days. The plaintiff states had sought more time to answer the court's questions regarding the legal standing of the intervening states and the U.S. House of Representatives to appeal the ruling.  

The DOJ, which normally takes the lead in defending federal laws, has essentially withdrawn from the case. Although O'Connor's ruling went much farther than the DOJ had urged, the Trump Administration announced in March that it agreed with the plaintiff states and would abandon its partial defense of the ACA and would side with the plaintiff states.  

"If the Trump Administration had done its job to defend and protect the healthcare of millions of Americans, we wouldn't be in this mess," California Attorney Xavier General Becerra said in prepared remarks. "Since President Trump refuses to protect Americans' healthcare, California's coalition has picked up his fumble."

Two of the judges hearing Tuesday's oral arguments are Republican appointees: Jennifer Walker Elrod, who was appointed by President George W. Bush in 2007, and Kurt Engelhardt, who was appointed by President Trump in 2018. Judge Carolyn Dineen King was appointed by President Jimmy Carter in 1979.

The ACA has proven tough to kill. It's survived more than 70 repeal attempts in Congress, and Supreme Court challenges in 2012 and 2015 since it became law in 2010.