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What's next for the Affordable Care Act

Democratic attorneys general led by California have filed a motion to allow for an immediate appeal of the decision to the Fifth Circuit Court.

Susan Morse, Senior Editor

Texas Judge Reed O'Connor's controversial decision striking down the Affordable Care Act on Friday is only the beginning of what is expected to be a lengthy legal and political process.

On Sunday, O'Connor followed up his ruling with a procedural order giving the parties until Friday to meet and confer. He also ordered them to jointly submit by Friday, Jan. 4, a proposed schedule for resolving the plaintiff's claims that without the individual mandate, the rest of the ACA is unconstitutional.

These are procedural matters. The crux of the case was decided on Friday.

But on Monday, Democratic attorneys general led by California Attorney General Xavier Becerra, filed a motion to allow for an immediate appeal of his ruling to the Fifth Circuit Court of Appeals in Texas.

They asked him to stay his decision.

They also want the judge to clarify that the ruling does not alter consumer rights and state obligations under the ACA, until the matter is fully decided through appeal.

Ranking Democrats have already said they would appeal, and a Democratic-led House of Representatives will also likely join the lawsuit.


To avoid disruption and confusion in the marketplace, the intervener states asked for a ruling on their motion by Friday.

"The court's order has already generated confusion about whether the ACA will remain enforceable once the Act's penalty for failing to maintain minimum coverage is reduced to $0 on January 1, 2019," the interveners said. "An order clarifying the import of the court's ruling would help quell concerns about the effect of the December 14, ruling while this litigation continues and provide peace of mind to millions of Americans relying on the ACA for health insurance in 2019."


Legal experts seem to agree that if the Fifth Circuit Court of Appeals upholds the decision, the case will likely head to the Supreme Court. The issue could become central to the 2020 election as it could take that long for the Justices to hear the case.

But if the appeals court reverses the order, the matter is not so clear.  Some legal experts expect the Justices would turn down the case.

"The Supreme Court would probably take this case up to definitively rule on the constitutionality of the ACA. Overall though, the ruling is expected to be overturned by the Fifth Circuit Court of Appeals, and many experts view the ruling as insufficient from a legal perspective." said ACA expert Arthur Tacchino, chief innovation officer at SyncStream.

It's also possible that Congress will pass a law solidifying the marketplaces and in a sense, render the legal ruling moot through legislative action, he said.

Either way, Republicans are left in the defensive position of supporting the outright repeal of the ACA, including the provision for pre-existing conditions they promised to keep in place.

After Friday's ruling, President Trump tweeted that Congress must pass a strong law to provide great healthcare and protect pre-existing conditions.

The Supreme Court has twice upheld the law. An earlier decision defended the validity of the Affordable Care Act as a form of taxation due to the individual mandate.

This has now proved problematic, as the Texas court has ruled the ACA is invalid without the mandate.

"Should this ruling make it to the Supreme Court for review, we will likely see differing reasoning on any decision given the new make-up of the court since the 2012 decision,"  said healthcare policy expert Kev Coleman, president of


The plaintiffs who won the case are 20 Republican-led states which brought a lawsuit in February claiming that the individual mandate is the core provision of the ACA and inseparable from the rest of the law. Without it - as will be the case starting January 1 - the rest of the ACA is unconstitutional, they said.

The federal judge agreed.


Provider and payer groups have decried the ruling for potentially stripping Americans of healthcare coverage and for destabilizing what had become a more stable market this year.

The open enrollment deadline for ended on Saturday.

After the federal court decision, Centers for Medicare and Medicaid Services Administrator Seema Verma was quick to tweet that the exchanges were still open for business.

"There is no impact to current coverage or coverage in a 2019 plan," Verma said.

Judge O'Connor has been criticized for allegedly overstepping his judicial power by using the court to get rid of the ACA when Republicans couldn't get it done through repeal and replace legislation.

The American Medical Association said the decision violates multiple precepts that guide and limit the exercise of the judicial power – and sets a dangerous precedent that invites politicians to resort to the unelected, life-tenured judiciary when they cannot achieve their political goals through the democratic process.

"Judge Reed O'Connor's decision is a stunning display of judicial activism," the AMA said by statement. "Judicial power does not extend to settling policy disputes or exercising general supervision over the other branches of the federal government. Congress declined to repeal the ACA on more than 70 occasions. Yet, this judge has stepped in and single-handedly done has what Congress chose not to do …"


The intervenor-defendants states are California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington and the District of Columbia.

Twitter: @SusanJMorse
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