In February 2018, 20 Republican state attorney generals and governors filed suit to have the ACA declared unconstitutional in the U.S. District Court for the Northern District of Texas in a case captioned, Texas, et al. v. United States of America, et al., 4:18-cv-00167. The plaintiffs were successful and the case is now on appeal to the Fifth Circuit Court of Appeals in State of Texas, et al. v. United States, et al., No. 19-10011 where the ACA is defended by similarly situated Democratic officials. An article entitled, “The Administration’s Opposition to the ACA– A Valiant Effort or A Mess? (flathatnews.com) ” appeared in our July 2019 newsletter. The Fifth Circuit held oral arguments in July. A ruling is expected yet this year.

“In August HHS released two new enrollment reports. The first shows that Marketplace enrollment has largely remained stable year over year, while the second shows that individual-market enrollment among unsubsidized consumers has declined significantly since 2016. First, more consumers retained their Marketplace plans in 2018 relative to 2017. Although enrollment dropped from 10.5 million people in February 2018 to 9.2 million in December 2018, the average monthly effectuated enrollment in 2018 was 9.9 million people, up from 9.8 million in 2017. Second, more than 10.6 million people in all fifty states and the District of Columbia had effectuated their 2019 Marketplace coverage as of February 2019. This means that most of the 11.4 million consumers who selected a plan during the 2019 open enrollment period paid their premiums. Consistent with prior years, 87 percent of enrollees received premium tax credits, and 52 percent were eligible for cost-sharing reductions. Additional effectuated enrollment data will be released later this year.” Katie Keith, “Texas Arguments Lead Heavy ACA Action,” Health Affairs, October 2019, 38:10.

So, what happens if the Fifth Circuit affirms the District Court’s decision. In an October 6, 2019 article in The Washington Post, Paige Winfield Cunningham and Yasmeen Abutaeb wrote, “If a federal appeals court invalidates the Affordable Care Act in the coming weeks, the Trump administration, which has consistently tried to overturn the law, might be expected to celebrate. But instead, current and former administration officials say, the White House — with no viable plans for replacing critical health benefits for millions of Americans — intends to ask the court to put its ruling on hold. And the administration may try to delay a Supreme Court hearing on the highly charged matter until after the 2020 election.

“Senior administration officials say they have some ideas for replacing parts of the 2010 health-care law, “principles” crafted in part by Centers for Medicare and Medicaid administrator Seema Verma. However, replacing key benefits — such as guaranteed coverage for people with preexisting conditions — would require the cooperation of Democratic congressional leaders, who have vowed to defend the law and have no interest in a piecemeal replacement plan likely to fall far short of preserving health coverage for about 20 million Americans.

“The administration’s plan to seek a stay of any court ruling that undermines the law reflects the political disadvantages of its decision to side with GOP-led states seeking to topple the ACA, also known as Obamacare. Even as the Justice Department urges the courts to invalidate the entire ACA, administration officials are promising voters that there will be no immediate impact on their coverage. … The administration also hopes to slow the case’s progress to the Supreme Court, to avoid having its efforts to invalidate the law spotlighted during President Trump’s reelection bid, two former administration officials said.”

As noted in our earlier article on this subject, the Department of Justice (“DOJ”) initially defended the ACA, the stance normally taken by the DOJ when federal legislation is under attack. However, in this case, the DOJ abruptly reversed it position and sided with the plaintiffs in a move widely seen as influenced by political considerations.