Considering the possibility that a federal judge in Texas could side with the DOJ or plaintiffs, Maryland filed a separate lawsuit of its own.
Any day now, the federal judge presiding over a lawsuit questioning the constitutionality of the Affordable Care Act, is expected to issue a ruling that could wreak havoc on the U.S. healthcare system. Maryland isn't sitting around waiting for that to happen.
Observers noted that U.S. District Judge Reed O'Connor seemed sympathetic to the plaintiffs' argument that Congress rendered at least part of the law unconstitutional when it zeroed out the tax penalty tied to its individual mandate. The Texas-led coalition of 20 conservative states that filed the suit urged O'Connor during a hearing last week to issue a preliminary injunction blocking enforcement of the entire ACA while the law proceeds.
The federal government defendants disagreed with the plaintiffs' position, but only partially. Having announced in June that it would not defend key provisions of the ACA, the Department of Justice argued that the individual mandate and two other pieces—including protections for those with preexisting conditions—were rendered unconstitutional by the change in tax law. If an injunction is issued, though, it should be delayed until January 1, when the individual mandate's penalty drops to zero, the DOJ argued.
All of this prompted a rush from a California-led contingent of liberal states seeking to defend the ACA in its entirety or to the maximum extent possible. Given the perception that O'Connor could side with the DOJ or the plaintiffs, however, Maryland took things a step further and filed a separate lawsuit Thursday in a different federal court.
"We cannot allow President Trump and Attorney General Sessions to destroy the ACA," Maryland Attorney General Brian E. Frosh said in a statement. "Their attempts to sabotage this life-saving law and jeopardize the health of Marylanders who rely on it cannot stand. We are taking action to protect and ensure health care coverage for every Marylander and all Americans."
Maryland is seeking an injunction that would require the government to continue enforcing the ACA. That has the potential of directly contradicting a possible injunction in the Texas case.
"That's an unholy mess just waiting to happen," University of Michigan law professor Nicholas Bagley wrote for The Incidental Economist.
Then again, Bagley added, the threat of dueling injunctions could prove empty.
"My best guess is that the Texas lawsuit will fizzle: any injunction will likely be stayed pending appeal, either by the Fifth Circuit or the Supreme Court, and the case is going nowhere on the merits," he wrote. "The Maryland lawsuit will likely prove unnecessary."
Steven Porter is editor at HealthLeaders.