A federal appeals judge is allowing Democrats to join the legal defense of the ACA.
A Texas judge ruled that the Affordable Care Act was no longer enforceable as Congress has repealed the penalty attached to its individual insurance mandate. As the Democrats regained control of the House of Representatives in the 2018 election, legislators began to set the stage for their entry into the law’s defense.
In the order (PDF), Circuit Judge Leslie Southwick said the House’s participation is worthwhile to the proceedings.
“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 said.
He did, however, challenge the House’s argument that it’s entitled to enter the case by law—but ruled ultimately that the argument is irrelevant.
Southwick also granted permission for four additional states to participate in the proceedings: Colorado, Michigan, Iowa and Nevada. These states will also join California and others in defense of the law.
Payers and providers also decried O’Connor’s ruling, with America’s Health Insurance Plans CEO Matt Eyles calling it “misguided and wrong.”
However, in that same order (PDF), Southwick rejected a request for expedited appeal in the case.
The ACA remains in effect as the legal battle over the law plays out. The case could end up before the Supreme Court—Judge Reed O’Connor, who initially ruled the law unconstitutional, believes that the Fifth Circuit will uphold his ruling.
As Democrats prepare to mount a defense of the law, experts are split on the best path for them to take. Nicholas Bagley, a law professor at the University of Michigan, has argued that the best course of action is for the lawsuit to be defeated through legislation.
If the House passed a bill that would fully repeal the mandate or set the penalty to a low value like $1, it could force Republicans to publicly slip up on protections for people with pre-existing medical conditions, Bagley said.
However, Timothy Jost, health law professor emeritus at Washington and Lee University, has warned that taking such an approach could backfire, and instead strengthen the legal argument for invalidating the entire law.