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U.S. Brings in Verrilli to Defend Affordable Care Act

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Don Verrilli of Munger, Tolles & Olson (Photo: Munger, Tolles & Olson)

Nearly six years after defending the Affordable Care Act at the Supreme Court, former U.S. Solicitor General Don Verrilli is diving back into the fight to defend the Obama-era law.

Verrilli is among a team of lawyers representing the newly Democratic-controlled U.S. House of Representatives. The House moved Thursday toward stepping in as a defendant in Texas v. United States (Case Number 4:18-cv-00167), a lawsuit that could nullify the Patient Protection and Affordable Care Act (PPACA), the main part of the Affordable Care Act statutory package.

(Related: Democrats Aim to Put ACA in the New House Rules)

Members of the House voted 234-197 today to approve a House rules resolution section that lets the House speaker intervene in the Texas v. USA case and other ACA cases.

The House now has 234 members who are Democrats and 198 who are Republicans. Three of the Democrats crossed party lines to vote against the rules measure, and three Republicans crossed party lines to vote for it.

Texas Attorney General Ken Paxton and officials from other Republican-led states brought the suit in February, in an effort to overturn PPACA.

Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas ruled in favor of Texas and the other Republican-led states December. The ruling is being appealed to the 5th U.S. Court of Appeals.

The House, backed by Verrilli and the newly hired House counsel, Douglas Letter, has filed a motion seeking court permission to intervene in the lawsuit in Texas.

The 116th Congress opened for business Thursday. Democratic lawmakers now have a majority in the House, and they have repeatedly vowed to step in to defend the ACA. The filing of the motion to intervene in Texas v. USA is one of the new Democratic House majority’s first major acts.

The filing is also the first big move on the job for Letter, a 40-year veteran of the Justice Department’s Civil Appellate staff. He left his post at the Georgetown Law Center in late December 2018 to join the House as its top counsel.

Verrilli, now a partner at Munger, Tolles & Olson, isn’t stepping into entirely new territory: He successfully defended the ACA in the U.S. Supreme Court’s 2012 ACA case NFIB v. Sebelius.

The “individual shared responsibility” section of the PPACA requires many people to hold what the government classifies as “minimum essential coverage,” or solid major medical coverage, or else pay a penalty. The federal Tax Cuts and Jobs Act of 2017 (TCJA) zeroed out the PPACA individual mandate penalty.

In 2012, the Supreme Court held that the ACA individual mandate was exempt from legal challenge because it was a tax. The U.S. Constitution lets Congress imposes taxes, and a federal law prohibits parties from suing to get injunctions against new federal taxes, the court ruled.

In December, O’Connor, the judge handling the Texas case, ruled that the TCJA provision zeroing out the PPACA individual mandate turned the provision into a requirement to buy commercial health insurance. Congress has no authority to make people buy commercial products, the judge ruled.

The plaintiffs contend that a court ruling invalidating any part of PPACA should invalidate the entire statute, because the statute lacks any clause that provides for the rest of the statute to survive if one part dies.

The U.S. Department of Justice has tried to sever the individual mandate and other PPACA provisions related to medical underwriting and pricing from the rest of PPACA. It has declined to defend the individual mandate, medical underwriting or pricing provisions.

O’Connor agreed with the plaintiffs and found all of PPACA to be invalid. He stayed the effects of his ruling while the ruling is being appealed to the 5th Circuit.

A coalition of states, led by California Attorney General Xavier Becerra, is trying to defend the law. That coalition filed a notice of appeal Thursday.

Verrilli and Letter asserted that the Justice Department’s refusal to defend part of PPACA opened the door for the House intervention. They wrote: “[F]ederal law provides that the Attorney General has a right to intervene in litigation to defend the constitutionality of an Act of Congress when the United States or one of its agencies or officers is not already a party, and it empowers the House and/or the Senate to intervene to defend a statute if the Attorney General fails to do so.”

At the very least, they contend, their defense would address the same legal questions being litigated in the case, and their participation would cause “no undue delay or prejudice to the Court or the parties.”

— Read Severability Replaces Broccoli in the Sights of Legal Scholarson ThinkAdvisor.

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