In one of the first actions on the opening day of a new Congress, the House of Representatives – now under Democratic control – moved to enter a federal court case to provide a robust defense of the constitutionality of the Affordable Care Act (“Obamacare”) in a direct confrontation with President Donald Trump.
The vote to do so on Thursday evening was a vivid illustration of the dawn of a new political day in Washington: It came after more than 60 attempts to repeal the law over the last eight years of Republican control of the House. The law was enacted in 2010 when the Democrats last held control of both houses. The House’s attempts to repeal the law failed in the Senate.
With the Democratic majority in the House now ready to defend the ACA, this will become the first major constitutional fight between it and President Trump.
The House’s entry into the highly visible case in a federal trial court in Fort Worth, Texas, and its imminent entry into the case as an appeal reaches the federal court of appeals based in New Orleans, did not need the approval of the Senate (still under Republican control) because it involved only an action of the House. The move does require the approval of both the trial court and the appeals court, but the House’s lawyers argued that there are federal laws and solid precedents in favor of such a move.
U.S. District Judge Reed C. O’Connor of Fort Worth ruled last month that the entire ACA is unconstitutional. However, he has put that decision on hold, to allow an appeal to go forward, so all of the law will remain in effect while that process unfolds – probably reaching the Supreme Court.
Since the Democrats took control of the House after sweeping victories in the November election, their party now has the power to pass a new version of a national health care law. But the fact that Republicans remain in control of the Senate may thwart such any such effort, and it almost certainly would be vetoed by President Trump if it did clear Congress.
The future of health care was a major issue during the latest congressional elections, and the Democrats promised swift action on that policy question once they regained control of the House.
Ordinarily, the Justice Department has the assignment of defending the constitutionality of laws passed by Congress. The Trump Administration chose not to defend the ACA in the Texas federal court after 19 states filed their constitutional challenge there. When such an Executive Branch decision not to defend is made, federal law provides that either the House or Senate may step in to offer a defense in court.
Technically, the House’s move to enter the case in Judge O’Connor’s court only involves its defense of the law against specific challenges that the judge has not yet decided. The defense thus would apply to those other issues if the case later returns to Fort Worth after the new appeal is decided in higher courts.
At the same time, however, the House’s lawyers notified Judge O’Connor that they will also move to join the appeal as soon as it is formally filed in the U.S. Court of Appeals for the Fifth Circuit.
That appeal, already promised by 16 states and the city government of Washington, D.C., is challenging the December 14 decision in Fort Worth. That ruling struck down one specific provision of the ACA and, based on the nullification of that one section, held that no other part of the law could survive without it. Thus, the fate of the entire law could be determined in the new appeal, depending on how broadly the higher courts decide it. That is the appeal in which the House will shortly ask the Fifth Circuit to allow it to join.
The House’s lawyers argued that they will be making some different arguments in defense of the ACA from those the supporting states will advance. In particular, the House filing said, the House has an institutional interest in the validity of laws it passes, an interest the states do not share because they are at a different level of government.
In addition, the House filing said that its lawyers will be making efforts to scuttle the challenging states’ constitutional lawsuit on the theory that the ACA causes no injury to those states, so they had no right even to sue.
Although Judge O’Connor was told by the House that the challenging states and the Trump Administration are opposed to the House’s entry, the new filing in Fort Worth made a series of arguments that the legislative chamber has both an explicit legal right to do so, but also has a backup argument that it should be let into the case as a matter of judicial discretion.
The House entry into the case at both the trial and appeals levels will not slow down or complicate the case, the new filing also argued.
As the appeal moves forward, it will focus on the two issues that Judge O’Connor did decide in a final way: first, that the ACA’s individual mandate – requiring more Americans to obtain health insurance or else pay a financial penalty – was beyond Congress’s legislative power and thus is invalid, and, second, that Congress would have passed none of the wide-ranging ACA law if the law did not contain the individual mandate provision.
Thus, Judge O’Connor said, the scores of other provisions could not be saved once the individual mandate was found to be invalid. Since his ruling is now on hold, though, every provision of the law will remain intact during the appeal process, except the financial penalty requirement; that penalty ended as of January 1, under a law passed by Congress in 2017, and the validity of that is not directly at issue in the case now.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.