- The Texas judge who ruled Friday the Affordable Care Act is now unconstitutional filed an order to expedite briefing on the case Tuesday afternoon.
- The latest order comes after 17 state attorneys general filed a motion Monday asking for stay on the ruling. California AG Xavier Becerra, who led the charge, said that if a stay is not granted, the group will ask that the ruling be certified so that they can appeal.
- Plaintiffs and federal defendants have until Friday to file their responses on whether a stay is warranted, whether the court should enter partial final judgment on the order and whether the court should certify the order for immediate repeal. Intervenor defendants have until Dec. 26.
Judge Reed O'Connor's decision was immediately decried by all manner of healthcare organizations, including providers, payers and patient advocates. Becerra, to no one's surprise, swiftly declared the ruling would be fought, possibly all the way up to the U.S. Supreme Court.
But O'Connor ruled on only one aspect of the ACA case, declaring that the landmark law is unconstitutional without the individual mandate penalty, which was zeroed out by the tax overhaul the GOP passed one year ago.
That still leaves three counts raised by plaintiffs yet to be decided: a Tenth Amendment claim, an Administrative Procedures Act claim and injunctive relief against federal officials. O'Connor ordered briefings from the involved parties on the remaining claims, which boil down to whether the ACA as an agency has a right to rulemaking and whether there should be an injunction to bar federal officials from implementing the law in states.
The latter is arguably preferred by many on the right who were not anticipating the ACA being ruled wholly unconstitutional last Friday, putting many on the Hill in the hot seat with constituents concerned about whether they've lost the consumer protections afforded by the ACA, mainly protections for those with pre-existing conditions.
Those protections are a nonpartisan issue that the majority of Americans find favorable. A Kaiser Family Foundation poll from September found 75% of Americans feel the pre-existing condition protections enforced by the ACA are "very important" and should remain law.
While the Texas case plays out through the rest of the week and into next week, the industry is also anticipating a ruling on the competing Maryland v. United States case, brought by Maryland Democratic AG Brian Frosh in September, which seeks to reaffirm the constitutionality of the ACA in front of a more liberal court.
The Texas ruling would have a profound impact on Maryland, which has had a lot of success with its Medicaid waiver. Those expansions would disappear if O'Connor's ruling stands. In Maryland, Frosh alleged the federal government would be doing harm to the hundreds of thousands of residents in that state who became insured through the ACA marketplace if the law were to be upheld as unconstitutional and eliminated.
About 150,000 people in Maryland became insured through the ACA marketplace in 2018, and more than 300,000 are now insured through the state's expanded Medicaid program.