In our December blog post, we discussed Texas v. United States, No. 19-10011 (5th Cir.), a Texas federal district court decision which struck down the entirety of the Affordable Care Act (“ACA”). The case is being appealed to the United States Court of Appeals for the Fifth Circuit, although a hearing date has not been scheduled. Last week, however, the United States Department of Justice stated in a court filing that the Department’s formal position is that the district court’s judgment should be affirmed in full. If the judgment is upheld as urged by the Department of Justice, the entire ACA would fall. Although the United States Supreme Court is likely to have the final word, and the outcome of this litigation will be far from assured until that time, the effect of the Department’s filing will likely be to make healthcare a top issue as we approach the 2020 election. Healthcare was a focus of Democratic messaging in the 2018 midterm elections, when Democrats regained control of the House of Representatives. If nothing else, this development, and the pending litigation, will be worth following politically as well as legally over the coming months.
