The FEHBlog believes that few federal laws have spawned more litigation than the Affordable Care Act. Last week, the Health Affairs blog had two posts on that litigation.
Beginning last night the health care policy newsletters begin to light up, as yesterday was the deadline for appellants to file their briefs in the current big kahuna of ACA litigation, the Texas v. United States appeal pending before the U.S. Court of Appeals for the Fifth Circuit.
Last December a federal court in Texas sided with a group of States asserting that Congress’s decision to zero out the Affordable Care Act’s unpopular individual mandate penalty effective January 1, 2019, rendered the whole massive law unconstitutional. An appeal was filed with the Fifth Circuit and district court stayed the efficacy of its judgment pending appeal.
Yesterday the intervenor appellants, a group of States lead by the State of California and the U.S. House of Representatives filed their opening briefs. If you care to read them, the State’s opening brief is here and the House’s opening brief is there. The Justice Department on behalf of the United States filed a letter stating that it will be filing a brief supporting the district court’s decision. This was a change from the Justice Department’s more nuanced position in the district court that zeroing out the individual mandate caused the related provisions wiping out preexisting condition exclusions to fall but not the rest of the law.
The appellee States and Justice Department briefs will be due on April 24. Also a Spanish armada of friend of the court or amici briefs will be filed over the five weeks.
Personally, the FEHBlog fully expects the Fifth Circuit to reverse the district court and uphold the ACA’s constitutionality based on the sound argument made in California’s brief. And if the Fifth Circuit goes in the other direction, the FEHBlog is willing to bet the ranch that Chief Justice Roberts’ Supreme Court will sustain the law’s constitutionality.
Back in the day, the FEHBlog was not happy when the Supreme Court upheld the ACA’s constitutionality because the law vastly overreaches and clearly has not achieved its goal of lowering health care costs. But it is a darn sight better than the horrifying Medicare for All proposals as Fortune Magazine attests here and the New York Times explains there.