Health care politics Republicanssay that when Congress eliminated the penalty for not having healthinsurance as part of last year's tax bill, lawmakers rendered theentire health law unconstitutional. (Photo: Shutterstock)

|

Wednesday is looking like yet another pivotal day in thelife-or-death saga that has marked the historyof the Affordable Care Act.

|

In a Texas courtroom, a group of Republican attorneys general,led by Texas' Ken Paxton, are set to face off against a group ofDemocratic attorneys general, led by California's Xavier Becerra,in a lawsuit aimed at striking down the federal health law. TheRepublicans say that when Congress eliminated the penalty for not having healthinsurance as part of last year's tax bill, lawmakers rendered theentire health law unconstitutional. The Democrats argue that's notthe case.

|

But first, the sides will argue before U.S. District Judge ReedO'Connor in Fort Worth, Texas, whether the health law should be puton hold while the case is litigated. The GOP plaintiffs are seekinga “preliminary injunction” on the law.

|

Related: GOP senators working to save pre-existingconditions

|

Ending the health law, even temporarily, “would wreak havoc inour health care system,” said Becerra in a call with reporters lastweek. “And we don't believe Americans are ready to see that theirchildren are no longer able to see a doctor or that they cannot gettreated for a preexisting health condition.”

|

Here are five questions and answers to help understand the case,Texas v. U.S.

|

1. What is this suit about?

In February, 18 GOP attorneys general and two GOP governorsfiled the suit in federal district court in the Northern Districtof Texas. They argue that because the Supreme Court upheld the ACAin 2012 by saying its requirement to carry insurance was alegitimate use of Congress' taxing power, eliminating the taxpenalty for failure to have health insurance makes the entire lawunconstitutional.

|

“Texans have known all along that Obamacare is unlawful and adivided Supreme Court's approval rested solely on the flimsysupport of Congress' authority to tax,” Paxton said in a statement when the suit was filed. “Congress has now kicked that flimsy supportfrom beneath the law.”

|

The lawsuit asks the judge to prohibit the federal government “fromimplementing, regulating, enforcing, or otherwise acting under theauthority of the ACA.”

|

2. Why are Democratic attorneys general defending the law?

The defendant in the case is technically the Trumpadministration. But in June, the administration announced it would not fully defend the law incourt.

|

The Justice Department, in its filing in the case, did not agree with the plaintiffs thateliminating the tax penalty should require that the entire law bestruck down. But it did say that without the tax, the provisions ofthe law requiring insurance companies to sell to people withpreexisting conditions and not charge them more should fall,beginning Jan. 1, 2019. That is when the tax penalty goes away.

|

The Republican attorneys general say they still believe theentire law should be invalidated, but if that does not happen, theywould accept the elimination of the preexisting conditionprotections.

|

The Democratic attorneys general applied to “intervene” in thecase to defend the law in its entirety. They say they needed tostep forward to protect the health and well-being of theirresidents. The judge granted them that status on May 16.

|

3. What would happen if the judge grants a preliminaryinjunction?

The GOP plaintiffs say the law needs to be stopped immediately,“both because individuals will make insurance decisions during fallopen-enrollment periods and because the States cannot turn theiremployee insurance plans and Medicaid operations on a dime,”according to their brief.

|

But setting aside the ACA while the case proceeds “would throwthe entire [health] system into chaos,” Becerra said. That'sbecause the ACA made major changes not just to the insurance marketfor individuals, but also to Medicare, Medicaid and the employerinsurance market.

|

Even in 2012, when the Supreme Court was considering theconstitutionality of the law before much of it had taken effect,some analysts from both parties predicted that finding the lawunconstitutional could have serious repercussions for the Medicareprogram and the rest of the health care system.

|

In practice, however, even if Judge O'Connor were to rule infavor of the Republicans' request to stop the law's enforcementimmediately, the decision could be quickly appealed up the line,including, if necessary, before the Supreme Court.

|

4. Is this case purely Republicans versus Democrats?

The case is largely partisan — with Republicans who oppose thehealth law arguing for its cancellation and Democrats who supportit fighting to keep it in place.

|

But a friend-of-the-court brief filed by five law professors whodisagree on the merits of the ACA said that, regardless, both theGOP states and the Justice Department are wrong to conclude thateliminating the tax penalty should result in the entire law beingthrown out.

|

In this case, “Congress itself has essentially eliminated theprovision in question and left the rest of a statute standing,” socourts do not need to guess whether lawmakers intended for the restof the law to remain, they wrote.

|

5. What is Congress doing about this?

Technically, Congress is watching the case just as everyone elseis. But Republicans in particular, while they mostly oppose thehealth law, are aware that the provisions protecting people withpreexisting conditions are by far the most popular part of the ACA.And Democrats are already using the issue to hammer opponents in the upcoming midtermelections.

|

Last month, 10 GOP senators introduced legislation they saidwould maintain the ACA's preexisting condition protections in theevent the lawsuit succeeds.

|

“This legislation is a common-sense solution that guaranteesAmericans with preexisting conditions will have health carecoverage, regardless of how our judicial system rules on the futureof Obamacare,” said Sen. Thom Tillis (R-N.C.), the bill's leadsponsor, in a statement.

|

Critics, however, were quick to point out that the bill doesn'tactually offer the same protections that are embodied in theACA. While the health law requires coverage for all conditionswithout extra premiums, the GOP bill would require that insurerssell to people with preexisting conditions, but not that thosepolicies actually cover those conditions.

Complete your profile to continue reading and get FREE access to BenefitsPRO, part of your ALM digital membership.

  • Critical BenefitsPRO information including cutting edge post-reform success strategies, access to educational webcasts and videos, resources from industry leaders, and informative Newsletters.
  • Exclusive discounts on ALM, BenefitsPRO magazine and BenefitsPRO.com events
  • Access to other award-winning ALM websites including ThinkAdvisor.com and Law.com
NOT FOR REPRINT

© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.