In an opinion released on a Friday evening in mid-December, Judge Reed O’Connor of the US District Court for the Northern District of Texas reignited the simmering debate over the Affordable Care Act’s (ACA’s) ultimate survival when he ruled the entire law unconstitutional in Texas v. U.S. The case, filed by 20 Republican-led states in February 2018, alleges that Congress invalidated the ACA when it zeroed out the individual mandate penalty under the tax reform legislation in 2017. Law360 published an article on December 18, 2018, by Morgan Lewis partners Susan Feigin Harris and Howard Young and senior health policy analyst Kathleen Rubinstein that discusses the decision, its impact, and what to expect next.
A number of Democratic-led states have intervened in the case, arguing that the individual mandate remains constitutional. In late December 2018, Judge O’Connor granted the intervening states’ request for final judgment along with a procedural stay of the decision. This action allowed for an immediate appeal by the intervening states to the US Court of Appeals for the Fifth Circuit and assured that the ACA’s provisions remain intact while the litigation proceeds. The case could potentially make its way up to the US Supreme Court in the future.
In early January, a judge in the US Court of Appeals for the Fifth Circuit, Leslie Southwick, granted a motion by the US Department of Justice to pause the appeals proceedings until after the partial federal government shutdown ended on January 25, 2019. The Democratic-led US House of Representatives has moved to intervene in the case.