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House Officially Intervenes in High-Stakes Case to Defend ACA

Analysis  |  By Steven Porter  
   February 14, 2019

Some have argued the House should focus on solving the pending ACA dispute through legislation, not litigation. Others argue the House is taking the best route available.

The U.S. House of Representatives officially intervened Thursday to defend the Affordable Care Act at the Fifth Circuit Court of Appeals, where 38 state attorneys general and the U.S. Department of Justice are arguing over whether any or all of the sprawling legislation remains constitutional.

Although attorneys for the House had argued that the chamber, newly under Democratic control, has a right to intervene in the case, Circuit Judge Leslie H. Southwick ruled that she didn't have to determine whether the House has such a right.

"In the absence of any other federal governmental party in the case presenting a complete defense to the Congressional enactment at issue, this court may benefit from the participation by the House," Southwick wrote, granting the request.

While the DOJ is defending part of the ACA, it last year declined to defend key elements of the law, including its community-rating and guaranteed-issue provisions, which prohibit insurers from hiking premiums for or refusing to cover consumers with preexisting conditions. Those provisions were rendered invalid by Congress zeroing out the tax penalty tied to the ACA's individual mandate because those provisions are inseverable from the mandate, the DOJ argues.

The argument raised by the Texas-led coalition of 18 plaintiff states, plus Mississippi Gov. Phil Bryant, goes much further. The plaintiffs argue that the entire ACA is inseverable from its individual mandate, so the entire law is invalid if the mandate is unconstitutional. That was the basis for U.S. District Judge Reed O'Connor's ruling late last year declaring the entire law invalid.

Thus far, the primary force defending the ACA has been a California-led coalition of Democratic state attorneys general who filed an appeal last month of O'Connor's decision. That coalition grew to include 20 members after Southwick granted a request Thursday by four states—Colorado, Michigan, Nevada, and Iowa—to join in the defense. She denied a request to expedite the proceedings.

The House's move to join the suit comes after court proceedings stuttered last month due to a partial government shutdown and as Democrats have sought to make healthcare a major policy discussion on Capitol Hill again, with at least one hearing reportedly growing heated.

Attorney Donald B. Verrilli Jr., who served as U.S. Solicitor General under the Obama administration and argued a previous ACA case before the Supreme Court, filed an appearance Thursday on the House's behalf.

Some have welcomed the House's involvement in the suit, while others have argued that lawmakers should pursue a legislative fix, rather than taking a risk on the litigation.

"Congress could fix the problem by saving, severing, or sinking the mandate," University of Michigan law professors Nicholas Bagley and Richard Primus wrote for The Atlantic, arguing that Congress could kill the suit by raising the individual mandate tax penalty from $0 to $1, legislatively declaring the mandate to be severable from the rest of the ACA, or repealing the mandate entirely (leaving the rest of the law behind).

Washington and Lee University health law professor Tim Jost, however, worries that a legislative maneuver of the sort Bagley and Primus propose could bolster the Texas-led plaintiffs' claims.

"Any proposed fixes will likely be partial, would open up the ACA to further amendment in the Senate, and would lend weight to plaintiff legislative history arguments," Jost told Vox's Dylan Scott. "This case is winnable in the courts and should stay there."

As Xpostfactoid blogger Andrew Sprung points out, Bagley and Jost are oft-cited as ACA defenders, so their differing views on how the House should proceed are noteworthy.

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


Attorney Donald B. Verrilli Jr., a former U.S. Solicitor General, filed an appearance Thursday on the House's behalf, with permission from a Fifth Circuit judge.

Four states secured a green-light to join the California-led coalition of Democratic state attorneys general defending the suit, bringing the group to 20 members.

Legal experts who agree the ACA should be defended disagree on whether the House's chosen course is the best option.

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