California and 16 other state attorneys general are asking a Texas judge to clarify his ruling on the Affordable Care Act, a procedural move that sets the stage for an appeal.
In response, the judge agreed on Tuesday to expedite briefings.
In a filing (PDF), a coalition of Democratic states, led by California Attorney General Xavier Becerra, requested District Judge Reed O’Connor clarify his Dec. 14 ruling that the ACA is unconstitutional due to zeroing out of the individual mandate penalty, which takes effect on Jan. 1. The states say clarification is warranted to avoid "extraordinary disruption."
Although the Department of Health and Human Services has said the ACA remains in place for now, the states argued that additional clarity “would be especially appropriate in light of the profound confusion and harm that might result from construing it differently."
“The recent U.S. District Court decision regarding the Affordable Care Act is not an injunction that halts the enforcement of the law and not a final judgment," HHS said in a statement on Monday. "Therefore, HHS will continue administering and enforcing all aspects of the ACA as it had before the court issued its decision."
Additionally, the states requested the judge stay the order so they can quickly appeal the ruling to the Fifth Circuit Court of Appeals.
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“The District Court’s ruling poses a dangerous threat to the healthcare of millions of Americans. We’re asking the court to make clear that the ACA is still the law and ensure that all Americans can continue to access affordable healthcare under it,” Becerra said in a statement. “Today’s filing makes clear that California and its partner states will do everything possible to challenge this reckless ruling that threatens the healthcare of Americans from California to Maine, risking the health of seniors, children, workers and young adults in every state in the nation.”
In its filing, the states requested the judge issue a ruling on their request by Dec. 21, arguing that clarity is needed before the beginning of the year when the individual mandate penalty officially ends. The filing also referenced the possibility of a government shutdown on Friday.
Becerra’s office said it plans to immediately appeal the decision once the judge issues his clarification. But that might not fall into place so quickly. University of Michigan law professor Nicholas Bagley tweeted that although the request is “pretty reasonable” O’Connor might have other plans.
“I'm skeptical he's going to rethink his approach just because California asks nicely,” he wrote on Twitter.
In a Health Affairs post, Katie Keith a health reform researcher at Georgetown University and principal at Keith Policy Solutions, wrote that a stay is warranted "given how much confusion and uncertainty has been generated by the decision," adding that O'Connor should clear the way for an immediate appeal.
But here's the thing. O'Connor knew when he entered his opinion that it wasn't a final judgment. That was deliberate: for whatever reason, he seems not to want the case to go up right away. And his scheduling order from Sunday suggests that he expects to hold onto it for a while.
— Nicholas Bagley (@nicholas_bagley) December 18, 2018
An order issued by the judge on Sunday that all parties propose a schedule for further briefing suggests it could be some time before an appeal can be filed, Bagley added.
On Wednesday, however, the O'Connor said an expedited briefing was necessary and ordered (PDF) both parties to explain whether a stay is warranted, whether the court should enter a partial final judgment and whether the court should certify the order for immediate appeal. He said federal defendants and plaintiffs should respond no later than December 21 and the intervening states should respond by December 26.