DOJ to SCOTUS: Scrap Entire ACA

The Trump administration argues in a Thursday filing that the entire ACA "must fall with the individual mandate."

In a Thursday night filing with the Supreme Court, the U.S. Department of Justice (DOJ) argued that the Affordable Care Act (ACA) must be struck down in its entirety.

The Trump administration argued in its brief that the individual mandate, which was zeroed out as part of the Tax Cuts and Jobs Act of 2017 (TCJA), cannot be severed from the remainder of the ACA and that therefore, the entire law must fall.

"Nothing the 2017 Congress did demonstrates it would have intended the rest of the ACA to continue to operate in the absence of these three integral provisions," the filing read. "The entire ACA thus must fall with the individual mandate, though the scope of relief entered in this case should be limited to provisions shown to injure the plaintiffs."

The filing represents a stark contrast to the DOJ's previous arguments that most of the landmark healthcare act should remain intact, even if the individual mandate was struck down by the TCJA.

Thursday's filing also marks the latest development in California v. Texas, the ongoing legal battle over the fate of the ACA, which was signed into law in March 2010.

In December 2018, a federal court judge in Texas ruled that the entire ACA was invalid because the individual mandate is invalid, citing the elimination of its financial penalty as part of the tax reform bill.

The case was appealed to the Fifth Circuit Court of Appeals which ruled in a split decision a year later that the individual mandate is unconstitutional, though the judges stopped short of invalidating the entire law.

Following the ruling, California Attorney General Xavier Becerra, who is leading a coalition of 20 states defending the ACA, filed a petition of certiorari with the Supreme Court to have the case heard on an expedited basis.

In early March 2020, the court agreed to hear the case, though it is not likely to be heard until the court's fall term, with a decision likely to be delivered by mid-2021.

Related: No End in Sight: Courts Unlikely to Resolve ACA Case Before 2020 Election

After the DOJ filed its brief to the Supreme Court, healthcare stakeholders and industry observers were quick to weigh in.

Becerra tweeted early Friday morning that the Trump administration was "fighting to destroy" the ACA in the midst of the coronavirus disease 2019 (COVID-19) pandemic.

"Tonight before #SCOTUS they showed how far they’re willing to go," Becerra said. "Millions of people rely on the ACA. Our coalition of 20 states + DC intends to win this, #ProtectOurCare."

Nicholas Bagley, a law professor at the University of Michigan, tweeted his disagreement with the administration's argument that the plaintiffs could challenge the landmark healthcare law "without determining whether [they] independently have standing to challenge the individual mandate."

Bagley wrote about "how anomalous it is for the Justice Department to be pressing a flawed argument that plaintiffs have standing. It's *always* on the other side of standing questions -- this is a *huge* departure from its practice."

He continued that the case "has had nothing to do with law as we conventionally understand it. It's an exercise of raw political power. And Bill Barr's Justice Department, to his everlasting shame, is happy to go along with it."

Related: ACA Ruling Dismays Hospitals, as Law's Defenders Look to Supreme Court

Neal Katyal, a former acting Solicitor General under President Barack Obama, tweeted that the DOJ's filing was a "dereliction of duty" and represented a sustained attack by the administration on the ACA.

"Make no mistake about it: the Trump Administration just asked the Supreme Court to gut all of the Affordable Care Act, and its insurance&protections for those with preexisting conditions," Katyal tweeted. "They absolutely didn't have to file such an absurd brief. They want to take it away from you."

Eliot Fishman, senior director of health policy at Families USA, a nonpartisan, nonprofit consumer health advocacy organization, tweeted that the administration's filing Thursday night indicated how "deeply cynical and insincere its arguments are."

"So last night's filing is not a statement of good faith legal arguments," he wrote. "It is a statement of bad faith legal arguments thinly covering reflexive hostility to Barack Obama's signature political achievement. Everyone knows that's what it is."

Fishman concluded: "That leaves two questions: the first is will the Republican justices on the Supreme Court take the political bait, and repeal the ACA in whole or in part. But the second--if they don't take that bait--is if they will call out the suit for the charade that it is."