On March 25, the U.S. Department of Justice announced that it had changed its original position and is now calling for the entire Affordable Care Act (ACA) to be struck down, setting up oral arguments before the U.S. Court of Appeals for the Fifth Circuit for early July.
The move by the Department of Justice is the product of an appeals process triggered by District Court Judge Reed O’Connor’s December 14 ruling (Texas v. United States) in favor a group of Republican Attorneys General who argue that the entire ACA should be overturned as unconstitutional. The heart of Judge O’Connor’s ruling is that the individual mandate, a central portion of the ACA, is unconstitutional if there is no tax penalty associated with it. Although the tax penalty still exists, the Tax Cuts and Jobs Act (H.R. 1, 115), signed into law by President Trump on Dec. 22, 2017, reduced the penalty to zero beginning in tax year 2019. Following Judge O’Connor’s ruling, California Attorney General Xavier Becerra appealed the decision along with 20 other Democratic Attorneys General. The Department of Justice also appealed, indicating that only certain sections of the law, such as that relating to the coverage of preexisting conditions, should be overturned. This position was amended on March 25 to argue that the full law should be overturned.
The reversal by the Department of Justice comes soon after the confirmation of Attorney General William Barr in mid-February, who mentioned his intention to reexamine the Department of Justice’s position in the case during his confirmation hearing before the U.S. Senate. The House of Representatives has sent letters to the Agency soliciting information about the nature of the reversal. On April 10, the Fifth Circuit Court of Appeals granted the Department of Justice’s motion to expedite oral arguments, which will be held the week of July 8.