Health Care

2 Republican AGs Break Rank, Back ACA At 5th Circ.

Two GOP attorneys general on Monday broke with their fellow Republicans and urged the Fifth Circuit to reverse a Texas decision that invalidated the Affordable Care Act — a ruling President Donald Trump supports.

While they agree that the ACA’s individual mandate is indeed unconstitutional, the rest of the law can and does function without it, Montana Attorney General Timothy C. Fox and Ohio Attorney General Dave Yost said in their 32-page amicus brief filed Monday.

There is no basis for striking down the entire law, and doing so could prevent millions from obtaining needed health care, the attorneys general said.

“The court’s decision, if affirmed, will deprive millions of non-elderly Ohioans and Montanans of coverage for pre-existing conditions,” they said in the brief. “It will also negatively affect countless others who organized their affairs in reliance on the act’s many unrelated provisions.”

The amicus brief underscores the divide among Republicans over trying to derail the nine-year-old law. Last week, the Trump administration — via a letter penned by the U.S. Department of Justice — told the Fifth Circuit it supported the December ruling, which called for the dismantling of the entire ACA. The DOJ has said it will continue to enforce the ACA while litigation is ongoing.

The total demolition of the law has otherwise been widely opposed outside of conservative legal circles. The amicus brief on Monday was joined by a slew of other pro-ACA amicus briefs filed the same day by groups representing doctors, insurers, hospitals, consumers, cities and counties, including from the Small Business Majority Foundation, the American Medical AssociationAmerica’s Health Insurance Plans, the American Cancer Society and AARP.

In the lawsuit now before the Fifth Circuit, Texas and other states argue that the ACA’s individual mandate, which the U.S. Supreme Court upheld as a valid form of taxing, is unconstitutional following Congress’ repeal of its tax penalty in 2017, according to court filings. That repeal went into effect this year.

And the mandate is not severable from the rest of the law, so the whole thing must go, the states said. The district court agreed.

However, Democrat-led states and the U.S. House of Representatives blasted the decision in amicus briefs filed last week. The states said the ruling “is unsound in all respects.”

The pair of GOP attorneys general on Monday agreed. In coming to its conclusion, the district court invalidated the current version of the ACA by examining the importance of an earlier version of the mandate to an earlier version of the act, Fox and Yost said in their brief.

“To describe the approach is to refute it,” they said.

And they wouldn’t have felt the need to weigh in on the matter if the district court’s order “were simply to bungle constitutional doctrine in Texas.” However, the effects of the flawed ruling have the potential to stretch from sea to shining sea, they said.

“Let justice be done though the heavens may fall,” they said. “But the district court’s ruling is wrong, and its errors threaten harm to millions of people in the Buckeye and Treasure states.”

The plaintiff states are represented by their respective attorneys general.

The defendant states are represented by their respective attorneys general.

The House is represented by Munger Tolles & Olson LLP, the Constitutional Accountability Center and the Office of General Counsel for the U.S. House of Representatives.

The U.S. is represented by the DOJ.

The case is Texas et al. v. U.S. et al., case number 19-10011, in the U.S. Court of Appeals for the Fifth Circuit.

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