The Administration’s Opposition to the ACA – A Valiant Effort or A Mess?

What results has the Trump Administration had with its opposition to the ACA? Two examples follow.

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.

The stance of this important litigation is complicated both by appellate procedure and governmental twists and turns. First, the Department of Justice (“DOJ”) initially defended the ACA, but subsequently changed its stance. Second, Judge Reed O’Connor held the ACA unconstitutional. Third, because Judge Reed O’Connor did not issue an injunction, continued implementation of the ACA was not immediately curtailed. Fourth, because the DOJ is no longer defending the ACA, the Fifth Circuit has asked the parties to address whether or not the state intervenors and the U.S. House of Representatives (the Democrats) have standing to intervene in the appeal, and if not, whether “the federal defendants’ change in position has mooted the controversy and no other defendant has standing to appeal.”

The potential consequence of all this can be simply stated in non-legal terms: since none of the named defendants are now challenging Judge O’Connor’s decision, and if the intervening Democrats are out, there shouldn’t be any appeal. Should the Fifth Circuit rule against the Democrats on the standing issue, and there is legal authority that would support that position, then the Fifth Circuit could decide to leave Judge O’Connor’s decision that the ACA is unconstitutional in place. And, remember Judge O’Connor did not issue an injunction so further litigation in that regard would be likely. Alternatively, the Fifth Circuit might find some basis for vacating the District Court decision despite existing law holding that the lower court decision should stand if the case becomes moot by the voluntary action of the parties.[1] Oral arguments are scheduled to be heard on July 9, 2019.

It is quite unusual for the DOJ to take a position seeking to invalidate an existing law, particularly after initially taking a contrary position. This change in position places the case in a complicated legal position where its outcome may be determined by the Fifth Circuit on grounds unrelated to the fundamental issue decided by the lower court.

In June 2018, the Department of Labor (“DOL”) promulgated a rule permitting individuals and small employers to join association health plans, commonly referred to as “AHPs.” The rule, entitled Definition of “Employer” Under Section 3(5) of ERISA—Association Health Plans was published in the Federal Register on June 21, 2018. It was intended to “[remove] undue restrictions on the establishment and maintenance of Association Health Plans (AHPs) under ERISA, … [facilitate] the adoption and administration of AHPs and [expand] access to affordable health coverage, especially for employees of small employers and certain self-employed individuals.”[2] “Mr. Trump promoted the small-business health plans as a way to save people from the ‘nightmare of Obamacare.’ He told small-business owners in June [2018] that ‘you’re going to save massive amounts of money and have much better health care.’”[3] In State of New York, et al. v. U.S. Department of Labor, et al., 363 F. Supp. 3d 109 (D.D.C. 2019), Judge Bates of the United States District Court for the District of Columbia, ruled on a challenge to the Rule filed by eleven states and the District of Columbia. Judge Bates described the Rule as follows:

The Final Rule allows virtually any association of disparate employers connected by geographic proximity to qualify as single ERISA plans. These associations no longer have to be viable apart from offering an association health plan (“AHP”) and may form solely for the purpose of creating an AHP. In addition, the Final Rule brings sole proprietors without any employees within ERISA’s scope by counting them as both “employers” and “employees.” Because the ACA defines terms key to its implementation—including “employer” and “employee”—according to the definition of these terms in ERISA, the Final Rule expands AHPs in a way that allows small businesses and some individuals to avoid the healthcare market requirements imposed by the ACA. Id. at 117.

Judge Bates ruled, “The Final Rule is clearly an end-run around the ACA. Indeed, as the President directed, and the Secretary of Labor confirmed, the Final Rule was designed to expand access to AHPs in order to avoid the most stringent requirements of the ACA. …  [T]he Final Rule’s provisions defining ‘employer’ to include associations of disparate employers and expanding membership in these associations to include working owners without employees are unlawful and must be set aside.” Id. at 118.

Significantly, in response to the decision, the DOL neither amended the Rule nor sought a stay of the District Court ruling while it prosecutes an appeal from Judge Bates’ decision. The result? Pending a resolution in the appellate courts, associations of employers may not form self-insured AHPs under the Rule, while those formed in good faith reliance on the Rule prior to Judge Bates’ ruling will not be subject to enforcement by the DOL but may or may not be under state law.

The Administration’s antipathy to the ACA is no secret. Legislative efforts to repeal and replace the Act have failed. Absent that, the Administration has turned to rule making and litigation. So what should we make of this strategy? A valiant effort? A mess? Or both?

[1] See, e.g. U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18 (1994); United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

[2] 83 FR 28912, pages 28912-28964.

[3] Robert Pear, “In Blow to Trump, Judge Blocks Health Care Law ‘End Run’”, New York Times, March 28, 2019.