The Texas-Led Challenge To Obamacare Is Moving Quickly. Here's What That Means.

May 3, 2019

Texas Attorney General Ken Paxton announced Wednesday that his office filed a brief with the Fifth Circuit Court of Appeals, arguing the Affordable Care Act is unconstitutional.

Texas is leading a multistate challenge to the federal health care law, also known as Obamacare. Republican leaders in those states argue the law was invalidated when Congress eliminated the tax penalty for not having health insurance, a provision in the law known as the individual mandate.

In December, U.S. District Judge Reed O’Connor in Fort Worth sided with Texas and the other states, finding the law was unconstitutional. But he stopped short of striking it down altogether.

A Democratic coalition led by California Attorney General Xavier Becerra appealed, and the case is now before the Fifth Circuit Court of Appeals. The court has agreed to expedite the case and will likely hold a hearing on the matter sometime in July.

Josh Blackman, an associate professor at South Texas College of Law and a conservative legal scholar, has been following the lawsuit. KUT asked him what comes next.

This interview has been lightly edited for clarity:

Considering this case has essentially been fast-tracked, what’s the timeline for it heading to the U.S. Supreme Court?

We might get a decision [from the Fifth Circuit Court of Appeals] by the fall of 2019. And depending what the lower court does, we may actually get a petition to the U.S. Supreme Court by early 2020 – which would mean we get a decision at some point not too far from the 2020 presidential election.

What was the intent behind the federal government asking the court to expedite the hearing?

Once the government took the position that this case should resolve the entirety of the ACA, I think it was in everyone’s interest to have a quick ruling. There’s no sense in dragging this out any further.

Why is that?

Because a lot of people rely on the Affordable Care Act.

Yeah, I guess the administration would have to come up with something –

Well, let me make one point that is not made often.

Sure.

Judge O’Connor in Fort Worth didn’t enter an injunction in order to stop the enforcement of the law. All he said is that the law – or at least parts of it – were unconstitutional.

Even if the Supreme Court affirms Judge O’Connor’s ruling, the case would then go down to the lower court to decide what the remedy is. So, we may even be a year or two away from an actual remedy.

So the Supreme Court’s decision – even if it agrees with Judge O’Connor – would not have any immediate practical effect. … The status quo wouldn’t change right away.

What do you make of the plaintiffs' arguments that the law should be struck down?

Attorney General Paxton is taking a position that is one that many Republicans don’t like. A lot of Republicans would wish this case goes away, because they don’t want to deal with actually legislating on health care.

Yet, Paxton and others are committed to this constitutional principle and they are willing to fight this case to the very end.

Do you think the state has a shot at prevailing in the Fifth Circuit?

I think that Judge O’Connor’s opinion survives at least in part. I don’t know how much will survive, but I think the opinion will survive, which will necessitate some form of Supreme Court review.