Demo­cratic at­tor­neys gen­eral ap­peal judge’s rul­ing

The Mercury News Weekend - - NEWS - By Amy Gold­stein The Washington Post

A coali­tion of Demo­cratic at­tor­neys gen­eral ap­pealed a rul­ing by a con­ser­va­tive Texas fed­eral judge that the en­tire Af­ford­able Care Act is un­con­sti­tu­tional — launch­ing a process Thurs­day that could land the law be­fore the U. S. Supreme Court for a third time.

The ap­peal, to the U.S. Court of Ap­peals for the 5th Cir­cuit, be­gins the case’s path through the ju­di­ciary af­ter the trial judge agreed last week­end that the health care law would re­main in ef­fect while higher courts con­sider his opin­ion

he ap­peal by 16 states and the District of Columbia con­sists of a sin­gle para­graph that lays out the le­gal steps to the ap­peal. But Cal­i­for­nia At­tor­ney Gen­eral Xavier Be­cerra, lead­ing the op­po­nents to the de­ci­sion, and other coali­tion mem­bers heaped barbed words on the rul­ing by U. S. District Judge Reed O’Con­nor, con­tend­ing that his opin­ion is “reck­less,” “lu­di­crous” and based on a le­gal theory that is “flimsy,” as var­i­ous at­tor­neys gen­eral put it.

Be­cerra, a former U. S. House mem­ber who voted for the ACA in 2010, said the rul­ing “threat­ens the en­tire health care sys­tem,” in­clud­ing doc­tors, hos­pi­tals, poor peo­ple re­ly­ing on Med­i­caid, older Amer­i­cans who take pre­scrip­tion drugs, women, and young adults in­sured un­der their par­ents’ in­sur­ance.

“You name it,” Be­cerra said in a con­fer­ence call with re­porters. “It hurts it.”

The ap­peal comes nearly three weeks af­ter O’Con­nor is­sued a de­ci­sion con­clud­ing that all of the ACA is in­valid be­cause of a re­cent change in tax law. His rea­son­ing hinges on the fact that a mas­sive tax bill, passed by Congress at the end of 2017, in­cluded a pro­vi­sion that elim­i­nates an ACA penalty im­posed on Amer­i­cans who did not com­ply with the law’s re­quire­ment that they have health in­sur­ance.

The case in­volves a law­suit filed a year ago by nearly a score of Repub­li­can at­tor­neys gen­eral, who ar­gued that with­out the penalty the ACA’s in­sur­ance man­date was no longer con­sti­tu­tional be­cause it no longer grew out of Congress’ tax­ing au­thor­ity. The suit then ar­gued that the in­sur­ance re­quire­ment could not be legally sep­a­rated from the rest of the sprawl­ing statute, so all of it was in­valid.

O’Con­nor agreed, writ­ing in his opin­ion that the cov­er­age man­date “is es­sen­tial to and in­sev­er­able from the re­main­der of the ACA.”

In their con­fer­ence call Thurs­day, the Demo­cratic at­tor­neys gen­eral dis­puted that rea­son­ing.

“It is sim­ply verg­ing on lu­di­crous to sug­gest that the is­sue of tax­a­bil­ity can­not be sev­ered from the rest of the ACA,” said Ore­gon At­tor­ney Gen­eral Ellen Rosen­blum. “This seems to be an over­reach, and one that will be stopped at the higher ap­pel­late level.”

The group of Demo­cratic at­tor­neys gen­eral emerged last year as the main de­fend­ers of the law when the Trump ad­min­is­tra­tion, in an un­usual move, an­nounced that it would not de­fend the ACA against the law­suit. On Thurs­day, Colorado’s Demo­cratic at­tor­ney gen­eral- elect, Phil Weiser, said he plans to join the coali­tion.


Cal­i­for­nia At­tor­ney Gen­eral Xavier Be­cerra said a judge’s rul­ing on ACA “threat­ens the en­tire health care sys­tem.”

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