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House votes to intervene in health lawsuit; DOJ seeks pause during shutdown

Three Republicans joined House Democrats in adopting a resolution to intervene in a lawsuit challenging the constitutionality of the Affordable Care Act — former President Barack Obama's signature legislative achievement.

The Jan. 9 vote was 235-192.

Most Republicans brushed off the notion that Americans would view the party's lack of support for the measure as a failure to guard the ACA's patient protections, including the 2010 law's provision that prevents insurers from discriminating against Americans with pre-existing medical conditions.

House Democrats already had filed a motion late last week to intervene in the lawsuit, in which Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled on Dec. 14, 2018, that when congressional Republicans under their 2017 tax reform package zeroed out the ACA's tax penalty for the individual mandate, that action rendered the remainder of the 2010 healthcare law unconstitutional.

When Republicans controlled the House, they attempted a number of times to repeal the ACA, including its pre-existing conditions protections — actions that later harmed the party in the 2018 midterm elections.

"With today's vote, the overwhelming majority of Republicans showed their true colors," House Majority Leader Steny Hoyer, D-Md., said in a Jan. 9 statement.

The measure authorizes House General Counsel Douglas Letter to intervene in the Texas lawsuit, which was brought by Republican attorneys general and governors from 20 states.

The House resolution also authorizes Letter to protect the chamber's institutional interests by defending the ACA, including the provisions ensuring affordable health coverage for Americans with pre-existing conditions in any other legal challenges against the law.

Michigan law professor Nicholas Bagley said it was unnecessary for the House to intervene in the case, given that a coalition of 17 Democratic attorneys general already are doing so and are appealing the decision to the U.S. Court of Appeals for the 5th Circuit in New Orleans.

House Democrats should instead be putting their efforts into passing legislation to stop the Texas lawsuit and force the Republican-controlled Senate's hand in the matter, Bagley wrote on Twitter last week.

Rather than defending the ACA, the Trump administration sided with the Republican plaintiffs in the case, asking the court specifically to strike down the provision that protects Americans with pre-existing medical conditions.

But the administration also acknowledged the law was intertwined with the functioning of the nation's healthcare markets. It argued that the individual mandate and the pre-existing conditions provisions could be severed from the remainder of the ACA.

Trump administration seeks hold

The U.S. Justice Department, representing the administration, this week also filed its own notice of appeal in the case.

On Jan. 9, the agency also asked the 5th Circuit to put the case on hold in light of the ongoing U.S. government shutdown, which is into its third week and on course to be the longest closure in the nation's history — a milestone it will pass if Congress fails to fund 25% of federal agencies before Jan. 13.

The Justice Department is one of the agencies that was caught in the Dec. 22, 2018, shutdown, now 19 days long.

"The Department of Justice does not know when funding will be restored by Congress," the agency's lawyers argued in their motion for a stay of the proceedings in the case.

Absent an appropriation, the agency's attorneys are prohibited from working, even on a voluntary basis, except in very limited circumstances, including emergencies involving the safety of human life or the protection of property, they said.

The responses to the House motion to intervene in the appeal are due by Jan. 17.

"As the government intends to oppose the intervention motion, the government respectfully requests that the stay of proceedings extend to the intervention motion, and that, as soon as Congress has appropriated funds for the department, the deadline for any response to the intervention motion be set 10 days from the date on which funds are appropriated," the Justice Department said. "The government also respectfully requests that appellate proceedings otherwise be stayed, and that, in particular, briefing time on the merits not begin to run until Congress has appropriated funds for the department."

The Democratic lawmakers and state attorneys general, however, are opposed to such a move.