Texas Fold'em

UPDATE 4/03/21: I've confirmed with a highly-trusted source that this isn't happening...at least not before the Supreme Court issues their ruling, anyway.

As noted below (scroll all the way down), it appears that a $1.00 penalty would be too small to make the reconciliation cut, which means the only way to #MootTheSuit via reconciliation would be to change the mandate back to an amount large enough to have a significant impact on the budget...which presumably means several hundred dollars.

I mean, if they're gonna do that, they might as well just restore it to the original $695/2.5% of income while they're at it.

Millions of Americans are nervously awaiting the official ruling on the fate of the Affordable Care Act in response to the CA v. TX lawsuit (previously Texas vs. U.S. or Texas vs. Azar, though I've given it the hashtag #TexasFoldEm due to the Trump Administration's Justice Department deciding to not only throw the fight but to actively support the plaintiffs against the law of the land).

While the U.S. Supreme Court isn't expected to issue their decision until April at the earliest, it's possible that they'll publish their ruling earlier than that...potentially as soon as this Thursday morning, February 25th.

As I noted earlier today, the Big News® this today is President Biden's pending Executive Order to re-open HealthCare.Gov to a full 3-month COVID-19 Special Enrollment Period starting on February 15th. There's a whole bunch of other important stuff in today's healthcare XO, but some of them will take months to actually finalize and implement.

Frankly, re-opening HC.gov is actually one of the simplest and most obvious healthcare-related executive orders Biden could give at the moment. Now that the starting/ending dates are known, it raises one other important question.

If you visit several of the state-based ACA exchange websites right now, you might notice a pattern:

Connect for Health Colorado (blog entry):

Staying Focused

It’s still 2020, so it only seems appropriate that we all have a lot on our plates. Despite the Texas v. California court case causing some news as it went before the Supreme Court this week, we continue to stay focused on our current Open Enrollment Period.

It is of note this year that individuals making up to $51,040 per year or a household of four making up to $104,800 annually may be eligible for financial help to lower their monthly premiums, healthcare discounts, or both. Nearly three quarters of all Connect for Health Colorado enrollments are financially assisted.

And, since plans and prices change every year, you can point people to our Quick Cost and Plan Finder Tool to see their options.

So, the idiotic, asinine and otherwise absurd GOP-brought, Trump-supported lawsuit to strike down the Patient Protection & Affordable Care Act finally had its (presumably final) day in court today...the United States Supreme Court, that is.

Here's my live-tweeting of the proceedings. I missed the first ten minutes of it and didn't tweet out everything, but this captures most of the Q&A.

Defending the ACA were California Solicitor General Michael Mongan and Donald Verrilli, who is the former U.S. Solicitor General, and who was working on behalf of the House Democrats, I believe. For the plaintiffs, you had the Texas Solicitor General, Kyle Hawkins and Acting U.S. Solicitor General Jeffrey Wall (note the "acting" descriptor...Trump has tons of unconfirmed appointees...)

Remember, there are three main questions for the SCOTUS to consider about the lawsuit:

Last night I threw together my very first online ACA seminar for about 40 people (plus an unknown number of Facebook Live viewers, assuming I set that up correctly). It runs about two hours; the first half was pretty much an updated version of my normal "3-Legged Stool" explainer.

For the second half, however, I was joined by University of Michigan law professor & ACA expert Nicholas Bagley who helped explain the intricacies of the absurd CA v. TX lawsuit to strike down the entire Patient Protection & Affordable Care Act (aka "TX v. Azar", "Tx. v. U.S." or, as I prefer to call it, "Texas Fold'em".

If you have two hours to kill, you can watch the whole thing here! If you want to skip past the ACA 101 stuff and go straight to Bagley & I discussing the lawsuit ahead of this morning's Supreme Court oral arguments, that starts at around the 70 minute mark.

(updated w/latest election results)

In January 2021, the U.S. Senate will have at least 48 Democrats (including 2 Senators who caucus with the Dems) and at least 50 Republicans.

The last two seats are both in Georgia. Elected GOP Senator David Perdue was up for re-election against Democrat Jon Ossoff and a Libertarian candidate, while appointed GOP Senator Kelly Loeffler was running for the first time in a "jungle primary" against another Republican and several Democrats in a special election.

Under Georgia state law, if no candidate receives at least 50% of the vote (plus 1) in the November election, the top two finishers go on to a runoff election on January 5th.

Since no candidates in the special election came close to 50%, it will go to a runoff between Loeffler and top Democratic finisher Rev. Raphael Warnock...and the regular Senate race will also going to go to a runoff between Perdue and Ossoff, as Perdue has fallen below the 50% threshold.

9:22am Nov. 6th: See updates at end


There's still millions of ballots left to count, and no doubt some legal battles gearing up, but as of 11:00am on November 4th, the most likely scenario going into 2021 will be:

  • Joe Biden will be sworn in as the 46th President of the United States.
  • Democrats will continue to control the U.S. House of Representatives, albeit with a smaller margin than they have today.
  • Republicans will continue to control the U.S. Senate, albeit with a smaller margin than today (either 52-48 or possilbly 51-49 depending on an upcoming runoff election in Georgia).

The Texas Fold'em lawsuit (official name: CA v. TX, formerly TX v. Azar) is scheduled to be heard by the U.S. Supreme Court (6-3 conservative) just 6 days from today, on November 10th.

Keep in mind, however, that while the hearing will happen next week, their actual decision isn't expected to be announced until next spring...most likely between April and June.

Five weeks ago, right after Supreme Court Justice Ruth Bader Ginsburg passed away, I once again wrote about the different options available to Democrats to save the ACA from a potentially disastrous SCOTUS ruling next spring...each of which would require them holding a trifecta in the House, the Senate and of course the Presidency:

  • 1. Pass a simple bill changing the federal mandate penalty to an amount higher than $0.00.
  • 2. Pass a simple bill clarifying that the mandate is separate from the rest of the ACA.
  • 3. Pass a simple bill striking out the underlying mandate language itself.

As I understand it, two of these would also require the newly-Dem controlled Senate to also kill the filibuster (or to somehow convince enough Republicans to agree to hit the 60-vote threshold), while the third (raising the penalty back over $0.00) could be done with just 50 votes (+ VP Kamala Harris as the tiebreaker) via the reconciliation process...which itself gets messy.

When I was in college at Michigan State in the early 1990's, there was a kid on my dorm floor who signed up for the old Columbia House CD* Club. For those of you too young to remember, here's how it worked:

Any music fan eager to bulk up their collection in the ’90s knew where to go to grab a ton of music on the cheap: Columbia House. Started in 1955 as a way for the record label Columbia to sell vinyl records via mail order, the club had continually adapted to and changed with the times, as new formats such as 8-tracks, cassettes, and CDs emerged and influenced how consumers listened to music. Through it all, the company’s hook remained enticing: Get a sizable stack of albums for just a penny, with no money owed up front, and then just buy a few more at regular price over time to fulfill the membership agreement. Special offers along the way, like snagging discounted bonus albums after buying one at full price, made the premise even sweeter.

"If you have a pre-existing condition...heart disease; diabetes; breast cancer...they're coming for you. If you love someone who has a pre-existing condition...they're coming for you. If you're under the age of 26 on your parents' coverage...they're coming for you."

Wednesday night's Vice-Presidential debate between Kamala Harris and Mike Pence wasn't as bad as last week's dumpster fire of a Presidential "debate" between Donald Trump and Joe Biden. The questions were mostly better, and neither Pence nor Harris screamed at each other. On the other hand, the moderator did a terrible job of cutting Pence off when he ran over his time limit or interrupted Harris, and just as importantly, Pence flat-out refused to answer most of the questions at all, often instantly changing the subject to whatever he happened to feel like talking about with zero pushback from moderator Susan Page.

November 3rd is just 33 days away. At least 2.2 million Americans have already voted as of this writing. The #TexasFoldEm Trump/GOP lawsuit to strike down the entire ACA is scheduled to be heard by the Supreme Court on November 10th...and Donald Trump, Mitch McConnell & Lindsey Graham are pushing as hard as possible to ram through ultra-right wing ideologue and anti-ACA zealot Amy Coney Barrett as quickly as they can.

Meanwhile, 1,000 people are still dying and 40,000 or so are still testing positive for COVID-19 each day.

Needless to say, tensions are high and Democrats have a much weaker hand when it comes to saving the ACA from oblivion than they did a couple of weeks ago.

So, as the clock ticks down to both 11/03, 11/10 and 1/20, both GOP Senate Majority Leader Mitch McConnell and Democratic Senate Minority Leader Chuck Schumer are playing a few mostly symbolic cards along the way.

On Tuesday evening, Sept. 29th, Schumer made the first move:

There's a lot to unpack in this press release from Covered California:

Covered California Hits Record Enrollment, Providing Important Lessons for the Nation on Meeting Americans’ Health Care Needs During the Pandemic and Major Economic Downturn

  • Covered California’s investments in marketing and outreach, along with consumer-first polices, helped it reach a record enrollment of 1.53 million people.
  • The record enrollment was bolstered by 289,000 people who signed up for coverage during the COVID-19 special-enrollment period, including 21 percent who were previously uninsured and likely ineligible to enroll under federal rules.

That's roughly 61,000 Californians who were able to enroll in ACA exchange policies specifically due to CA having an open SEP (that is, no requirement of coverage loss/etc. to do so).


The Texas Fold'em lawsuit to strike down the ACA (officially called "Texas vs. U.S.", "Texas vs. Azar" or, more recently, "CA vs. TX") is scheduled for oral arguments before the U.S. Supreme Court on November 10th, 2020...exactly one week after Election Day.

A few hours after Supreme Court Justice Ruth Bader Ginsburg passed away Friday evening, I posted an entry which opened with the following sentence:

I'm assuming that the death of Supreme Court Justice Ruth Bader GInsburg doesn't change the date of the hearing; presumably it will be heard by the 8 other SCOTUS justices or (God help us) by all 9 if Mitch McConnell is able to ram through Trump's appointee in record time (November 10th is just 53 days away).

May her memory be a blessing.

I'll have much more to say about this, of course, but tonight I'll keep it short.

The Texas Fold'em lawsuit to strike down the ACA (officially called "Texas vs. U.S.", "Texas vs. Azar" or, more recently, "CA vs. TX") is scheduled for oral arguments before the U.S. Supreme Court on November 10th, 2020...exactly one week after Election Day.

I'm assuming that the death of Supreme Court Justice Ruth Bader GInsburg doesn't change the date of the hearing; presumably it will be heard by the 8 other SCOTUS justices or (God help us) by all 9 if Mitch McConnell is able to ram through Trump's appointee in record time (November 10th is just 53 days away).

While Justice Ginsburg's passing under a Trump Presidency should strike terror into everyone's heart for 1,000 other reasons as well, the big fear about the Texas Fold'em case specifically is that it means either a) the ACA is dead if Trump manages to get a replacement on the bench, or b) even if he doesn't, a 4-4 split ruling would result in the case being kicked back down to the lower federal court...which would also mean the law is dead.

Perhaps...but perhaps not.


A rational person might be wondering why the Trump Administration and the entire Republican Party* is still dead set on tearing down the entire Affordable Care Act over ten years after it was signed into law, even in the middle of a global pandemic which has already killed more than 130,000 Americans and infected nearly 3 million more.

After all, they were eventually able to eliminate the single least popular provision of the law: The federal individual mandate penalty. Most of the rest of the elements are actually quite popular...and in fact poll after poll finds that the bulk of the public wants those other provisions strengthened, not weakened or eliminated.

Yesterday, the Trump Administration formally submitted their official brief with the Supreme Court of the United States asking SCOTUS to completely and fully strike down the entire Patient Protection & Affordable Care Act. This is the latest development in the utterly insane "California vs. Texas" lawsuit (formerly "Texas vs. U.S.", "Texas vs. Azar", or as I prefer to label it, "Texas Fold'em", a name originally coined by U of M law professor Nicholas Bagley but which doesn't seem to have caught on with anyone other than me so far.

I've written about this completely absurd lawsuit more times than I care to remember, but as a reminder, here's what it comes down to.

The image below is the "3-legged stool" of the Affordable Care Act.

The blue leg represents the various patient protections which the ACA requires health insurance carriers to provide--guaranteed issue, community rating, essential health benefits and so on.

via Sam Brodey of The Daily Beast:

The worsening coronavirus outbreak may be stretching the limits of the U.S. health care system and overwhelming state governments, but that isn’t deterring a group of 18 state attorneys general from plowing ahead with a lawsuit that could overturn the Affordable Care Act within a year—a move that could disrupt the health care system at a time of deep crisis. 

This fall, Texas Attorney General Ken Paxton is slated to argue in the U.S. Supreme Court on behalf of 17 Republican attorneys general—and against 21 Democratic attorneys general—that Obamacare is unconstitutional and must be struck down immediately.

Last May, New Jersey Democratic legislators were pushing through over a dozen bills which would effectively lock in nearly all of the ACA's "Blue Leg Protections", as I refer to them, at the state level. The main reason for this, of course, is to replicate federal ACA protections for enrollees just in case the U.S. Supreme Court does ultimately strike down the Affordable Care Act (or at least strikes down the consumer protection parts of it).

Well, I kind of lost track of the status of those bills over the summer and fall, but apparently most of them passed through both the New Jersey state House and Senate because just moments ago, NJ Governor Phil Murphy issued the following press release:

via the official CNN Democratic Debate Transcript (Part 1, Part 2)

PHILLIP: Let's turn to health care, the top issue for Iowa Democrats. Donald Trump is trying to repeal Obamacare, including the protections for pre-existing conditions. We all know that each of you vigorously opposes that. Still, there are some questions about what each of you would do.

This was the only time throughout the entire healthcare portion of the debate that anyone said a peep about the Texas vs. Azar lawsuit...and it wasn't even one of the candidates; it was the moderator.

Senator Sanders, you have consistently refused to say exactly how much your Medicare For All plan is going to cost. Don't voters deserve to see the price tag before you send them a bill that could cost tens of trillions of dollars?


With the Texas vs. Azar lawsuit (aka #TexasFoldEm) dangling over everyone's heads like the Sword of Damocles, Kaiser Family Foundation CEO Drew Altman has a short piece up over at Axios which notes that the sick irony of this whole stupid situation is that the ACA itself is clearly doing at least reasonably well without the mandate penalty being in place anyway...completely undermining the entire case of the plaintiffs in the lawsuit:

The ACA is doing fine without a mandate penalty

The Affordable Care Act’s insurance market has not been materially affected by the elimination of the individual mandate penalty — undercutting a key argument in the lawsuit urging the courts to strike down the health care law.