- Seventeen Democratic state attorneys general filed a notice of appeal Thursday in response to a judge's ruling that the ACA is unconstitutional without its individual mandate penalty. With a stay on Texas Judge Reed O'Connor's decision, the law remains in effect and the appeals process now awaits further direction from the Court of Appeals for the Fifth Circuit.
- The coalition, led by California Attorney General Xavier Becerra, is arguing that O'Connor's decision is erroneous and "wrong-headed," Becerra said on a call with reporters. Dismantling the ACA, he added, would be detrimental to the health of millions of Americans who are insured under the law, as well as economic growth and trust in government.
- Oregon Attorney General Ellen Rosenblum said on the call that O'Connor's decision is an affront to the rule of law. The notion that the severance of the individual mandate makes the entire ACA unconstitutional is "verging on ludicrous" and an "absurd interpretation of the law," she said.
With the appeal process officially in motion and a stay on O'Connor's decision granted, the Democratic fight to maintain the ACA's constitutionality may decelerate to a grinding pace. Becerra said the coalition hopes for a ruling on its appeal by the end of the year, though the fight is expected to eventually be taken up to the U.S. Supreme Court.
The pacing allows more time for both parties to accrue support. The Democratic state AGs are in the process of tapping newly-elected officials to join the case. That includes incoming Colorado Attorney General Phil Weiser, who said on the call with reporters that his "first official act is to become a part of this case."
Rosenblum said it "remains to be seen" what role, if any, Congress will have in the case. The newly Democratic-led House of Representatives is expected to allow its legal counsel to intervene in the case and join the appellants, with a formal vote on a resolution expected to take place next week.
Republican votes against the measure will likely be used as ammunition by Democrats who argue that Republicans are jeopardizing care for those with pre-existing conditions.
Becerra reminded reporters on the call that it was Republican state officials who started the lawsuit, which seeks to dismantle the law and its consumer protections entirely.
"We took affirmative action in this litigation even though we were not parties to it," he said. "We did not believe the federal government would adequately defend the ACA in court, and I think we've been right."
Additional support for the appellants has already come from heavyweight industry players such as the American Hospital Association and the American Medical Association, both of which have decried O'Connor's decision.
"Take a look at the amicus briefs that have been filed already in this case," Becerra said, citing support form provider and consumer advocacy groups. "They're already on record in defense of the ACA and people's healthcare and against the decision of the district court in Texas."
Despite the stay issued late last month, O'Connor's ruling has already created confusion for the millions of Americans insured under the law, both through the exchange and state Medicaid expansions — and especially for the 133 million Americans with pre-existing conditions whose protections will be wiped out if last month's decision stands.
A briefing schedule is yet to be set by the Court of Appeals for the Fifth Circuit.