Texas, et al. v. United States, et al.
An Explainer
Eighteen Republican Attorneys General and Two Republican Governors Filed a Lawsuit to Repeal the Affordable Care Act
In February 2018, Republican state attorneys general and governors from 20 states filed a lawsuit in the U.S. Northern District of Texas. They include:
Texas – Attorney General Ken Paxton
Wisconsin – Attorney General Brad Schimel
Alabama – Attorney General Steve Marshall
Arkansas – Attorney General Leslie Rutledge
Arizona – Attorney General Mark Brnovich
Florida – Attorney General Pam Bondi
Georgia – Attorney General Christopher Carr
Indiana – Attorney General Curtis Hill
Kansas – Attorney General Derek Schmidt
Louisiana – Attorney General Jeff Landry
Maine – Governor Paul LePage
Mississippi – Governor Phil Bryant
Missouri – Attorney General Josh Hawley
Nebraska – Attorney General Doug Peterson
North Dakota – Attorney General Wayne Stenehjem
South Carolina – Attorney General Alan Wilson
South Dakota – Attorney General Marty Jackley
Tennessee – Attorney General Herbert Slatery
Utah – Attorney General Sean Reyes
West Virginia – Attorney General Patrick Morrisey
Then, in June of 2018, the Trump Administration said it would not defend the Affordable Care Act and actually agreed in part with the plaintiffs, arguing that protections for people with pre-existing conditions should be overturned.
The Republican Argument is Not Only Wrong Legally…
The Republican officials claim that now that the Affordable Care Act’s individual mandate fine has been reduced to $0 as a result of the 2017 tax law, the mandate can no longer be considered a “tax.” Because of this change, they argue that the mandate is now unconstitutional and that the entire Affordable Care Act must be struck down alongside it under the principle commonly referred to as “severability.”
Professors Jonathan Adler and Ilya Somin, who opposed the ACA in previous legal cases, joined pro-health care professors Nicholas Bagley, Abbe Gluck, and Kevin Walsh in arguing the Republican legal arguments are wrong. Here is why: when Congress essentially eliminated the individual mandate in 2017, it kept the rest of the ACA intact, showing that Congress clearly believed the mandate was separable from the rest of the law. “[A] court’s substitution of its own judgment for that of Congress would be an unlawful usurpation of congressional power and violate basic black-letter principles of severability,” the scholars wrote.
…It Would Also Have Devastating Impacts on Our Care
This dangerous Trump-GOP lawsuit threatens the care and coverage of tens of millions of Americans. If the courts rule in favor of the Republican attorneys general, critical Affordable Care Act protections would vanish overnight, unleashing chaos in our entire health care system. Here is what could be eliminated:
- 17 million more people could lose their coverage in a single year, leading to a 50 percent increase in the uninsured rate
- Protections for 130 million people with pre-existing conditions, if they buy coverage on their own
- Improvements to Medicare, including reduced costs for prescription drugs
- Allowing kids to stay on their parents’ insurance until age 26
- Ban on annual and lifetime limits
- Ban on insurance discrimination against women and people over age 50
- Limit on out-of-pocket costs
- Medicaid expansion currently covering 15 million people
- Small business tax credits
- Marketplace tax credits for up to 9 million people
The Trump Administration is Siding With the Republican AGs, and Not With Federal Law or the American People
Typically the Department of Justice defends federal law. In this case, the Trump Department of Justice said it agrees with the Republican state officials that the individual mandate is now unconstitutional. But even though the Republican attorneys general argue the entire ACA should be repealed, the Trump Administration is only asking the court to overturn the insurance reform provisions that protect people from discrimination by insurance companies due to their health status, gender, or age.
Specifically, the Trump Administration is arguing that guaranteed issue and community rating should be overturned. “Guaranteed issue” means insurance companies cannot deny coverage to anyone for any reason. “Community rating” provisions prevent insurance companies from charging someone more because they have a pre-existing condition, or because of their gender. The ACA also limits how much more a person over 50 can be charged compared to a younger person.
Democrats Have Stepped Up in the Federal Government’s Absence
In the absence of the executive branch defending federal law, a coalition of Democratic attorneys general have stepped up to protect our care.
California – Attorney General Xavier Becerra
Connecticut – Attorney General George Jepsen
Delaware – Attorney General Matthew Denn
Hawai’i – Attorney General Doug Chin
Illinois – Attorney General Lisa Madigan
Kentucky – Attorney General Andy Beshear
Massachusetts – Attorney General Maura Healey
Minnesota by and through its Department of Commerce Commissioner Jessica Looman
New Jersey – Attorney General Gurbir Grewal
New York – Attorney General Barbara Underwood
North Carolina – Attorney General Josh Stein
Oregon – Attorney General Ellen Rosenblum
Rhode Island – Attorney General Peter Kilmartin
Vermont – Attorney General T.J. Donovan
Virginia – Attorney General Mark Herring
Washington – Attorney General Bob Ferguson
District of Columbia – Attorney General Karl Racine