One response to the #TexasFoldEm ruling may surprise you...but there's reasons for it

This one may surprise you...


— Laura Litvan (@LauraLitvan) December 15, 2018

The recent federal court decision is still moving through the courts, and the exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan.

— Administrator Seema Verma (@SeemaCMS) December 15, 2018

The Trump Administration's Dept. of Justice was guilty of dereliction of duty when they refused to defend the law of the land against the #TexasFoldEm lawsuit in the first place, and went so far as to support the overall thrust of the plaintiffs.

HOWEVER, even they, oddly enough, didn't want the entire law thrown out--they "only" wanted the pre-existing condition protections killed off (Guaranteed Issue, Community Rating and probably Essential Health Benefits). The official stance of the Trump DOJ was that they wanted the rest of the law kept in place.

Again, I realize how nonsensical this may seem, especially given the Trump Administration's obsession with repealing the ACA--you'd think this would be exacty the outcome they want. However, there's a couple of reasons I can think of why they "only" wanted a partial victory at the moment:

  • First, it's gonna cause even more massive chaos and outrage than if they'd "only" stripped away pre-existing condition protections. Yes, Trump wants outrage, but I presume he wants to be in control of that outrage, if that makes any sense.
  • Second, Trump's "solution" to the problem of high ACA premiums is to push junk plans...but he still wants to keep control over the billions of dollars of APTC & Medicaid expansion the point of actually using them to subsidize those junk plans. If the entire ACA is repealed, that's a major revenue source cut off which I presume they can no longer use for bribes, kickbacks and the like.
  • Third: Trump himself doesn't have the brain capacity to understand anything about how the ACA works, but Alex Azar and Seema Verma do, and I presume Jeff Sessions did when he instructed the DOJ about how to deal with the case. Again, I presume they want controlled chaos.

Granted, these are just speculation on my part, but whatever the reason is, the fact remains that the judge gave Trump and the entire Republican Party exactly what they claim they've wanted for the past 8 years...he just gave it to them earlier than they wanted him to.

Regardless, the fact remains that the 2019 ACA Open Enrollment Period is still ongoing and everyone should still #GetCovered for 2019 by visiting HealthCare.Gov by tomorrow night (if you live in CA, CO, DC, MA, MN, NY or RI, you still have more time to sign up).

Once again, Nicholas Bagley lays out the legal side of this insanity:

I'm getting a lot of questions about when the judge's opinion takes effect. Bottom line: nothing changes for now, and nothing will change for some time to come. Here's why.

The judge entered a declaratory judgment, not an injunction. That means the Trump administration and the states are free to keep implementing the ACA. One district court judge's declaration doesn't bind the government nationwide.

What's more, California is going to appeal this decision. And it'll probably seek a stay pending appeal out of an abundance of caution -- though I don't think it technically needs to do so, since there's no injunction in place.

Some court will enter a stay -- probably Judge O'Connor himself, but failing that the Fifth Circuit or the Supreme Court. What's certain is that it's above the judge's pay grade to invalidate the entire ACA without any possibility of review.

So breathe deeply. The Fifth Circuit is unlikely to take this frivolous case seriously, and the case will die without the Supreme Court having to intervene. In the meantime, the ACA will remain in effect.

The wildcard here is the Trump administration, which has choices about how to respond. Will it keep enforcing, as it has been, while the case is still pending? That's my expectation. But if it throws a fit of pique and stops enforcing altogether, that could get ugly.

Again, I don't think that's likely, and a competing lawsuit in Maryland might force the Trump administration to keep enforcing. In the meantime, the ACA remains intact, this insane decision notwithstanding. /fin

Of course, no one took the King vs. Burwell case seriously and it did indeed manage to make it all the way to the Supreme Court before being shot down, and God knows "wildcard" fits Trump to a T...but Bagley is likely correct about this. Even Jonathan Adler, one of the architects of the King vs. Burwell case, thinks this is gonna die before it makes it to SCOTUS:

“I would be quite surprised if this opinion survives the inevitable appeal to the U.S. Court of Appeals for the Fifth Circuit, and even more surprised if this result garners the support of more than two justices on the Supreme Court (if the case even gets that far).”

— Joe Palmore (@palmore_joe) December 15, 2018

In fact, the following notice just started appearing at the top of HealthCare.Gov's home page: