As Democratic governors scramble to appeal a Dec. 14 ruling that essentially struck down the Affordable Care Act, a reprieve keeping the law intact could come by the end of the year.
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The ACA remains in effect until Dec. 31 after Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas ruled that the 2017 tax law that zeroed out penalties beginning in 2019 for not carrying health insurance effectively rendered the entire ACA unconstitutional.
On Dec. 17, a group of Democratic attorneys general “asked Judge O’Connor to clarify that his ruling does not presently affect any rights or responsibilities under the ACA until appellate review is complete, or alternatively to stay his ruling,” Timothy S. Jost, emeritus professor at the Washington and Lee School of Law, in Lexington, Va., said during a Dec. 18 press teleconference hosted by the Commonwealth Fund. “They also asked him to certify the case for an immediate appeal and to do so by the end of this week.”
Mr. Jost noted that Judge O’Connor asked the plaintiffs and the U.S. Department of Health & Human Services to respond to this request by Dec. 21.
“I expect him to rule, probably, on New Year’s Eve on what happens next,” Mr. Jost said.
If Judge O’Connor refuses to stay his order, the group of Democratic attorneys general is expected to appeal to the Fifth Circuit Court of Appeals for such a stay, Mr. Jost said. He noted that the Fifth Circuit is one of the more conservative courts – with five Trump administration appointees and five judges appointed by previous Democratic administrations.
In general, Mr. Jost said that he does not expect Judge O’Connor’s ruling to stand.
“The decision is so clearly wrong, however, that I believe there is a good chance that it will be reversed,” he said. “If the Fifth Circuit does, I think it is very unlikely the Supreme Court take the case.” He added that if the Fifth Circuit upholds Judge O’Connor’s ruling, the court would take the case and “very likely reverse at least 5-4 and quite possibly 6-3 on at least the issue of severability.”
Mr. Jost added that he expects the case to drag into 2020 and possibly 2021.
Democrats – with their new majority in the House of Representatives – are likely to intervene legislatively in early in 2019 but are unlikely to be successful at getting the Republican-led Senate to pass “feel-good” legislation that would protect those with preexisting conditions, something Mr. Jost said “cannot be re-created” short of reenacting the entire ACA given the complex processes and subsidies that make coverage of preexisting conditions possible.
Both chambers of Congress could work together on something as simple as reinstating the penalty – even if it were set at just $1 – to coming up with something more comprehensive, but that would be extremely challenging to make happen and to get President Trump to sign off on, he said.