Affordable Care Act Heads Back to the U.S. Supreme Court

More than eight years after successfully defending the constitutionality of the Affordable Care Act, former Obama administration solicitor general Donald Verrilli Jr. will urge the U.S. Supreme Court this November to reject efforts by the Trump administration and 18 Republican-led states to dismantle the entire law.

Verrilli, a partner in Washington at Munger, Tolles & Olson, will argue on Nov. 10 on behalf of the Democratic-led U.S. House of Representatives. He will share argument time with a California state lawyer whose name has not yet been announced. California Deputy Solicitor General Samuel Siegel is counsel of record in the combined cases California v. Texas and Texas v. California.

House general counsel Douglas Letter is counsel of record in the Supreme Court. Letter has been assisted pro bono by Verrilli and a team from Munger Tolles, in addition to lawyers from the Constitutional Accountability Center. Verrilli was on the team helping the House during earlier stages of the litigation in the 5th U.S. Circuit Court of Appeals.

The justices have enlarged argument time from the usual 60 minutes to 80 minutes, with 40 minutes for each side. Acting U.S. Solicitor General Jeffrey Wall and Texas Solicitor General Kyle Hawkins are expected to argue for the challengers, who also include two individuals.

As in 2012, when the justices first confronted a challenge to the Obama administration’s signature legislative achievement, the stakes are high. An estimated 23 million people rely on the law for health insurance, and the law has become a potential lifeline for workers who lost their insurance along with their jobs during the COVID-19 pandemic.

The Supreme Court arguments will come one week after the Nov. 4 presidential election. Democratic presidential candidate and former vice president Joe Biden has made the Trump administration effort to kill the health care law a major issue in his campaign. President Donald Trump has promised to protect coverage for preexisting conditions even as his Justice Department argues to scrap the entire law.

The high court cases stem from a suit by Texas and 17 Republican-led states. They argued that the individual mandate to purchase health insurance — which the Supreme Court upheld in 2012 as constitutional under Congress’s power to “lay and collect” taxes — was no longer constitutional after Congress in 2017 zeroed out the tax penalty for failure to have insurance.

The Trump administration Justice Department sided with Texas in the district court but, unlike Texas, argued that the individual mandate could be severed from the rest of the law. The district court ruled the entire law must fall.

The Justice Department later changed its position on severability in the appeal, filed by California and 16 Democratic-led states, and now supports striking down the entire law. A divided appellate panel affirmed the district court but sent back the question of whether Congress intended other provisions of the law to remain operable.

The justices have agreed to decide: whether zeroing out the penalty in the minimum coverage provision made it unconstitutional; if it is unconstitutional, is the provision severable from the rest of the act; whether the challenger states and individuals have standing to sue, and whether the district court was correct to order nationwide relief.

The U.S. House had intervened in the case at the Fifth Circuit. Letter has turned to outside counsel for assistance in several cases as he and his relatively small staff manage an extraordinary docket of cases, many involving the Trump administration.

Letter argued for the House in May in the Supreme Court fight over committee subpoenas for Trump’s financial documents, a case that now continues in the lower court. He is also representing the House in the new term in the case Department of Justice v. House Committee on the Judiciary, a fight over access to grand jury materials in the Russia investigation by Special Counsel Robert Mueller. On the brief assisting Letter are attorneys from Georgetown University’s Institute for Constitutional Advocacy and Protection.

Letter and his staff also are litigating the refusal of former White House Counsel Donald McGahn to respond to a Judiciary Committee subpoena, the Ways and Means Committee suit against the U.S. Treasury Department over Trump’s tax returns and more.

In a New York Times interview last year, Charles Tiefer, a former House solicitor and deputy general counsel, described Letter’s “portfolio” as “unprecedented,” adding, “The challenges for the House counsel ebb and flow over time, but this is like nothing else in history.”

If the justices strike down the Affordable Care Act, health experts say, not only will millions lose their health insurance but also ending would be coverage for preexisting conditions and for young persons up to age 26 on their parents’ plan, subsidies for low-income people, the Medicaid expansion in many states and a host of other changes made by the law, such as provisions that fund graduate medical education programs, and a provision that closed the Medicare Part D prescription drug plan “donut hole,” or the gap between when routine Medicare drug benefits end and catastrophic coverage begins.

More than 40 amicus briefs have been filed in the combined cases by a broad swath of health, insurance, civil rights, and consumer groups, states and legal, medical and ethics scholars.

— Read Trump Administration Fears ‘Chaos’ If ACA Provisions Blocked Too Soon, on ThinkAdvisor.

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