TexasFoldEm

UPDATE 9/29/20: There have been several important developments in the #TexasFoldEm case since I posted this back in June.

For one thing, another 81,000 Americans have died of COVID-19 and another 4.7 million Americans have tested positive for it.

For another, Supreme Court Justice Ruth Bader Ginsburg has passed away, and Donald Trump has already formally nominated an ultra-right wing zealot who is on the record as wanting the ACA to be struck down to replace her. His nominee's confirmation hearings have already been scheduled to start in mid-October, meaning that there's a very good chance that she'll be confirmed by the GOP-controlled Senate before Election Day...in which case the Texas Fold'em case to strike down the entire ACA could end up being the very first case she hears as a U.S. Supreme Court Justice on November 10th.

With this in mind, I figured this would be a good time to re-up the analysis below.

A month ago, incumbent Democratic Senator Gary Peters of Michigan and his Republican challenger John James were both interviewed as part of a Detroit Regional Chamber series on several issues, including healthcare policy and the ACA.

As I noted at the time:

  • James called for no-cost primary care to be mandated...which is already included in the ACA.
  • James called for coverage of pre-existing conditions to be mandated...which is already included in the ACA.
  • James accused Peters of supporting Medicare for All...which Peters explicitly doesn't, which James was called out for during the segment.
  • James, who has repeatedly called the ACA a "nightmare" he wants repealed, now says that he wants to keep "the part that works"...namely it's coverage of pre-existing conditions.

Most curiously, however, when asked how he intends to guarantee coverage of pre-existing conditions if the ACA is struck down en masse, James rattled off a short list of head-scratchers, including "tort reform".

 

This morning, U.S. Senator Gary Peters (D-MI) and his Republican opponent, John James, were interviewed online by Nolan Finley of the Detroit News and Stephen Henderson of DPTV & WDET. Here's the verbaitm transcripts of each of their healthcare/ACA Q&A sections, Peters first:

HENDERSON: "One of the things which has been made really manifest during the COVID-19 pandemic is the weakness of our healthcare system. We're now coming up on about a decade of life under the Affordable Care Act, which of course expanded access to insurance and made some other changes, but there are still obviously a lot of inefficincies...there are a lot of insufficiencies.

Give us an idea of what you would support in terms of changes to the healthcare system, changes to the Affordable Care Act, to get more people covered at lower costs and make the system work better."

Republican Senator Cory Gardner is up for re-election this fall, and he's in major trouble. Various polling over the summer has him trailing his Democratic opponent, former CO Governor John Hickenlooper, by around 6 points on average.

Gardner is underwater for many reasons, many of which have to do with his repeated attempts to repeal the Affordable Care Act...most recently by voting for the "Skinny Repeal" bill the summer of 2017 which was nipped in the bud by a single vote thanks to John McCain's famous "thumbs down" vote.

Back in March I noted that while the U.S. Supreme Court has indeed agreed to hear the Texas Fold'Em lawsuit to strike down the Affordable Care Act (aka "Texas vs. Azar", aka "Texas vs. U.S.", aka "CA vs. TX") sometime this fall, the odds of actually getting a final decision in the case from SCOTUS before the November election (or even before either Trump or Biden are sworn into office in January) is extremely unlikely:

The ACA case was granted. It will be heard this coming term.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

#SCOTUS grants petition filed by California & other states, as well as petition filed by Texas on whether individual mandate can be separated from rest of ACA. Argument is likely in the fall, w/decision to follow by June 2021.

Back in March I noted that while the U.S. Supreme Court has indeed agreed to hear the Texas Fold'Em lawsuit to strike down the Affordable Care Act (aka "Texas vs. Azar", aka "Texas vs. U.S.", aka "CA vs. TX") sometime this fall, the odds of actually getting a final decision in the case from SCOTUS before the November election (or even before either Trump or Biden are sworn into office in January) is extremely unlikely:

The ACA case was granted. It will be heard this coming term.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

#SCOTUS grants petition filed by California & other states, as well as petition filed by Texas on whether individual mandate can be separated from rest of ACA. Argument is likely in the fall, w/decision to follow by June 2021.

Last week it was noted by several healthcare policy experts that if and when a vaccine for the coronavirus (COVID-19) sweeping the entire planet is ever developed, under the Affordable Care Act, insurance companies would be legally required to cover the full cost of it for anyone enrolled in an ACA-compliant policy:

SEC. 2713. COVERAGE OF PREVENTIVE HEALTH SERVICES.

(a) In General.--A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for--

(1) evidence-based items or services that have in effect a rating of 'A' or 'B' in the current recommendations of the United States Preventive Services Task Force;

(2) immunizations that have in effect a recommendation from the Advisory Committee on Immunization Practices of the Centers for Disease Control and Prevention with respect to the individual involved; and

About a month ago I wrote a flow chart, of sorts, explaining the different potential permutations of the absurd Texas vs. Azar (aka Texas vs. U.S., aka #TexasFoldEm) lawsuit which threatens the entire Affordable Care Act. Since then there's been a few more developments (actually, a few more non-developments), the timing of which change the potential landscape a bit.

Sometime this morning the Supreme Court is expected to announce whether they'll intervene in the case:

Hey everyone! The Supreme Court may announce at at 9:30am today its decision about whether to take the big Affordable Care Act case.
If it says yes, it'll hear argument in the fall (around the election!). If it says no, it'll take another three years or so to get a final answer.

— Nicholas Bagley (@nicholas_bagley) March 2, 2020

Here's the catch, though:

If yes, they'll HEAR the case in the fall...but when would they announce their *decision*?

SHOT (if you can afford one):

!! Azar refuses to promise a coronavirus vaccine will be affordable for anyone:

"We would want to ensure that we work to make it affordable, but we can't control that price, because we need the private sector to invest.. Price controls won't get us there."

— Michael McAuliff (@mmcauliff) February 26, 2020

CHASER:

If the U.S. Preventive Services Task Force recommended a coronavirus vaccine, the ACA would require that all insurance plans cover it with no patient cost-sharing. (That wouldn't apply to short-term plans expanded by the Trump administration, which do not comply with ACA rules). https://t.co/OK7SOm22Wh

— Larry Levitt (@larry_levitt) February 26, 2020

A few minutes ago I noted that the Supreme Court has announced that they'll be considering whether or not to expedite a review of the Texas vs. Azar (#TexasFoldEm) lawsuit at a private conference on February 21st.

What's that mean? Well, when we last checked in on the status of the case, the 20 Democratic state Attorneys General, led by California AG Xavier Becerra, had requested that the Supreme Court intervene in the ongoing federal court process and fast-track the case from where it is right now (bouncing around within the 5th Federal Circuit Court of Appeals) to instead hear the case directly and issue a final ruling on whether or not the Affordable Care Act will be struck down before the November election.

Speaking of the Texas Fold'em lawsuit (officially Texas vs. U.S. or Texas vs. Azar) which, if ultimately upheld, could result in the entire ACA being struck down, there's been a small but important development this morning:

Supreme Court to consider taking ObamaCare case

The Supreme Court on Wednesday listed a closely watched case seeking to strike down the Affordable Care Act for discussion at the justices’ private conference on Feb. 21. 

The justices will consider whether to take up the case and on what schedule. 

There is at least some possibility they could decide to take the case this term, meaning a ruling would be issued by June. But most observers expect a ruling will not come until after the 2020 election, either because the court waits until the next term to hear it, or because it decides not to take up the case at all until lower courts have finished considering it. 

A new, if not surprising, development in the Republican Party's absurd "Texas Fold'em" lawsuit against the ACA:

Attorney General Becerra Leads Coalition Seeking Supreme Court Review of ACA Repeal Case

Friday, January 3, 2020

SACRAMENTO – California Attorney General Xavier Becerra today, leading a coalition of 20 states and D.C., filed a petition to the U.S. Supreme Court seeking review of the Fifth Circuit’s recent decision in Texas v. U.S. The decision held the individual mandate of the Affordable Care Act (ACA) unconstitutional and called into question whether the remaining provisions of the ACA could still stand, including those that protect and provide coverage to Americans with pre-existing conditions. Because this decision causes uncertainty that may harm the health of millions of Americans, as well as doctors, clinics, patients, and the healthcare market, Attorney General Becerra and his coalition are petitioning the Supreme Court to take up the case and resolve it before the end of the Court’s current term in June.  

In March 2019, Linda J. Blumberg, Matthew Buettgens, John Holahan and Clare Wang Pan of the Urban Institute ran a detailed analysis to determine what the impact on healthcare coverage would be in every state if the Texas vs. U.S. lawsuit (aka Texas vs. Azar or #TexasFoldEm) caused the Patient Protection & Affordable Care Act (ACA) to be repealed with immediate effect.

They also attempted to calculate how much federal funding every state would lose each year if the ACA were to be repealed as a result of the absurd Texas vs. U.S. (aka #TexasFoldEm) lawsuit.

Nationally, they concluded that the U.S uninsured rate would increase by nearly 20 million people, while the 50 states (+DC) would collectively lose out on nearly $135 billion in federal funding.

Here's my original post on yesterday's 5th Circuit Court of Appeals ruling in the absurd Texas vs. U.S. (aka Texas Fold'em) lawsuit.

The bottom line for What This Means is:

  • The ACA remains the law of the land and likely will remain that way for at least another year.
  • Having stated the above, the ACA is still indeed very much in jeopardy. Going forward, the case will follow one of two possible routes:
    • Officially, it's supposed to go back to the judge who ruled against the ACA in the first place a year ago to "reconsider" which parts of it can be "saved"...after which it would then go back to the 5th Circuit Court of Appeals, and then to the U.S. Supreme Court. That full process could take well over a year.​​​​​​​
    • However, it's possible that the Supreme Court will intervene and agree to take the case up instead of it going to the original judge first, which is what the defending states are now requesting. This full process...could still take up to a year, although it's conceivable that a final ruling would be issued before the election.

Well, as if Impeachment Day wasn't tense and historic enough already, the 3-judge panel of the 5th Circuit Court of Appeals has finally issued their decision on the Texas vs. U.S. (aka Texas vs. Azar, aka Texas Fold'em) lawsuit intended to strike down the entire Affordable Care Act:

Before KING, ELROD, and ENGELHARDT, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge:

Pages