In a tersely worded letter to the US Court of Appeals for the Fifth Circuit, the US Department of Justice (DOJ) announced on Monday that it “has determined that the district court’s judgment in Texas v. U.S. should be affirmed” and “is not urging that any portion of the district court’s judgment be reversed.” In December 2018, Judge Reed O’Connor of the US District Court for the Northern District of Texas reignited the simmering debate over the Affordable Care Act’s (ACA’s) ultimate survival when he ruled the entire law unconstitutional in Texas v. U.S. In a surprising reversal of its previously stated position that only certain provisions of the ACA (such as the ban on preexisting condition protections) should be severed from the statute, the DOJ is now asking the Fifth Circuit to invalidate the entire law. Even before yesterday’s abrupt change of course by the DOJ, the US Department of Health and Human Services has said that it will continue to administer and enforce the ACA during the appeals period.

While the DOJ may have altered its nuanced position to a full repeal of the ACA, procedurally this does not end it for the issue at the Fifth Circuit. Rather the Intervenor US House of Representatives filed its brief yesterday arguing for the preservation of the ACA, even if the individual mandate is deemed unconstitutional, writing:

If the district court’s stunning ruling invalidating the entire Act – or even just its protections for people with preexisting conditions – is upheld, the consequences will be devastating. Millions of Americans will be denied affordable health care. Insurance costs will skyrocket. Medicare recipients will face steep increases in the price of drugs and other services. And the Nation’s healthcare system will be thrown into chaos. The severity of such consequences calls for the utmost caution...this Court should reverse.

Coming on the heels of the ACA’s ninth anniversary, the fate of the law currently remains before the Fifth Circuit and could potentially make its way up to the US Supreme Court once again. We will continue to monitor the case for any developments, including whether and when a hearing will be scheduled.