Health Reform WK-EDGE DOJ asks Fifth Circuit to uphold district court’s ruling striking the entire ACA
Tuesday, June 4, 2019

DOJ asks Fifth Circuit to uphold district court’s ruling striking the entire ACA

By WK Editorial Staff

DOJ brief asks Fifth Circuit to uphold district court finding that ACA is unconstitutional.

The Department of Justice has filed a brief asking the Fifth Circuit Court of Appeals to uphold the district court’s ruling in Texas v. U.S., arguing the lower court correctly ruled, in the absence of any revenue-raising provision, the Patient Protection and Affordable Care Act’s (ACA) individual mandate can no longer properly be upheld as a tax and is, therefore, unconstitutional.

ACA invalid in its entirety. In its brief filed on May 1, 2019, the DOJ also argues that without the mandate, "Congress would not have intended to retain the guaranteed-issue and community-rating provisions, which Congress expressly found depended on the mandate, or the rest of the ACA, which involves numerous other interdependent provisions likewise designed to work together to expand health-insurance coverage and to shift healthcare costs."

Accordingly, the DOJ argues the district court properly concluded that the ACA is invalid in its entirety. The DOJ acknowledges that in the district court, it took the position that the remainder of the ACA was severable, "but upon further consideration and review of the district court’s opinion, it is the position of the United States that the balance of the ACA also is inseverable and must be struck down."

Three provisions must operate together. The brief explains that as an initial matter, the guaranteed-issue and community-rating provisions cannot be severed from the individual mandate. When Congress enacted the ACA, it codified factual findings that the three sets of provisions must operate together. "When Congress in 2017 eliminated the mandate’s penalty but left the mandate itself in place, it did not revise prior congressional findings that the mandate is ‘essential’ to the operation of the guaranteed-issue and community-rating provisions," the brief states.

Rest of ACA can’t operate without them. The DOJ then goes on to argue that "once those core provisions are excised, the balance of the ACA cannot continue to operate as intended" because the remaining provisions are interdependent on the individual mandate and those core provisions. "Instead of rewriting the statute by picking and choosing which provisions to invalidate, the proper course is to strike it down in its entirety," according to the brief.

Interestingly, the DOJ notes that the remaining provisions of the ACA should not be allowed to remain in effect even if the government might support some individual provisions as a policy matter.

Oral arguments in the case are scheduled for the week of July 8.

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