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Explaining Texas v. U.S.: A Guide to the 5th Circuit Appeal in the Case Challenging the ACA

Issue Brief
  1. Texas v. U.S., No. 4:18-cf-00167-O, Memorandum Opin. and Order (N.D. Tex. Dec. 14, 2018), https://affordablecareactlitigation.files.wordpress.com/2018/12/Texas-v.-US-partial-summary-judgment-decision.pdf.

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  2. Texas v. U.S., No. 4:18-cv-00167-O, Compl. (N.D. Tex. Feb. 26, 2018), https://affordablecareactlitigation.files.wordpress.com/2018/09/177111358274.pdf.

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  3. Texas v. U.S., No. 4:18-cv-00167-O, Amended Compl. (N.D. Tex. April 23,, 2018), https://affordablecareactlitigation.files.wordpress.com/2018/09/texas-v-us-aca-amended-complaint.pdf.

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  4. The federal government and the plaintiffs also endorsed the Supreme Court’s determination in NFIB that the individual mandate also is not a constitutional exercise of Congress’ power to regulate interstate commerce. The trial court adopted both of these conclusions in its decision.

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  5. Letter from U.S. Dep’t of Justice to U.S. Court of Appeals for the Fifth Circuit Clerk (March 25, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/03/doj-anti-aca-letter-3-25.pdf.

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  6. It stated that the “relief awarded to the plaintiffs should extend only to the ACA’s provisions that actually injure them. Texas v. U.S., no 19-1001, Brief for the Federal Defendants at 19 (5th Cir. May 1, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/05/5c-us-brief.pdf.

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  7. Texas v. U.S., no 19-1001, Order (5th Cir. Feb. 14, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/02/5c-order-denying-motion-to-expedite-granting-oregon-motion-to-intervene.pdf.

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  8. Texas v. U.S., no. 19-1001, Order (5th Cir. Feb. 14, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/02/5c-order-granting-us-house-motion-to-intervene.pdf. The House also sought to intervene in the trial court proceedings in January 2019, but the trial court stayed briefing on that motion while the 5th Circuit appeal is pending.

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  9. One individual plaintiff asserts that his Marketplace plan is not accepted by all of his family’s healthcare providers, his new providers are not of the same quality, and some new providers have limited appointment availability which delays his access to care. The other individual plaintiff alleges that his Marketplace plan is high cost, and he would prefer to purchase coverage with lower premiums. Texas v. U.S., no. 19-1001, Br. of Appellees Neill Hurley and John Nantz (5th Cir. May 1, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/05/5c-individual-appellees-brief.pdf.

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  10. Texas v. U.S., no. 19-1001, State Defendants’ Opening Br. at 26 (5th Cir. March 25, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/03/5c-intervenor-defendants-opening-brief.pdf.

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  11. Texas v. U.S., no. 19-1001, Br. for State Appellees (5th Cir. May 1, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/05/5c-appellees-brief.pdf.

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  12. Texas v. U.S., no. 19-1001, State Defendants’ Opening Br. at 26 (5th Cir. March 25, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/03/5c-intervenor-defendants-opening-brief.pdf.; Texas v. U.S., no. 19-1001, Opening Br. of Intervener the U.S. House of Representatives at 3 (5th Cir. March 25, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/03/5c-houses-opening-brief.pdf.

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  13. The trial court exercised its discretion to allow the states to intervene, finding that their April 2018 motion was filed timely, the states’ defense shared a question of law with in common with the plaintiffs, and their participation would not unduly delay the case or prejudice the original parties. The trial court also held that these states did not qualify to intervene as a matter of right because the federal government had not yet taken a position in the case, and therefore, there was no evidence that these states’ interest in defending the ACA would not be adequately represented. Texas v. U.S., No. 4:18-cf-00167-O, Order (N.D. Tex. May 16, 2018), https://affordablecareactlitigation.files.wordpress.com/2018/09/order-granting-intervention.pdf. The 5th Circuit allowed four more states to intervene as defendants on appeal in an order that does not provide any reasoning for the decision. Texas v. U.S., no 19-1001, Order (5th Cir. Feb. 14, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/02/5c-order-denying-motion-to-expedite-granting-oregon-motion-to-intervene.pdf.

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  14. In Bethune-Hill, the Supreme Court in a 5:4 decision held that the Virginia state house did not have standing to appeal a lower court decision that found the state’s electoral redistricting plan unconstitutional. The Bethune-Hill court noted that “to appeal a decision that the primary party does not challenge, an intervener must independently demonstrate standing.” No. 18-281, maj. slip opin. at 4 (June 17, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/06/18-281_6j37.pdf. The opinion speaks to the standing of a state legislative body under state law, rather than the U.S. House. The dissent notes in passing that “[i]f one House of Congress or one or more Members of Congress attempt to invoke the power of a federal court, the court must consider whether this attempt is consistent with the structure created by the Federal Constitution.” Id., dissent slip opin. at 7. The dissent quotes from the U.S. Solicitor General’s amicus brief observing that “[i]n the federal system, the Constitution gives Congress only ‘legislative Powers,’ and the ‘power to seek judicial relief. . . cannot possibly be regarded as merely in aid of the legislative function.’” Id. at 6.

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  15. The 5th Circuit also found that the House’s defense shared a question of law in common with the plaintiffs and its participation would not unduly delay the case or prejudice the original parities. The court noted that “[i]n the absence of any other federal government party in the case presenting a complete defense to the Congressional enactment at issue, this court may benefit from the participation by the House.” Texas v. U.S., no. 19-1001, Order (5th Cir. Feb. 14, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/02/5c-order-granting-us-house-motion-to-intervene.pdf.

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  16. The court cites the Supreme Court’s decision in U.S. v. Windsor, which involved the Obama Administration’s decision to no longer defend the constitutionality of the Defense of Marriage Act (DOMA), although it continued to enforce DOMA’s prohibition against same-sex marriage. The majority found that this created a contested case by injuring the plaintiff and therefore did not consider whether the House Bipartisan Legal Advisory Group (BLAG) had standing to pursue an appeal to defend DOMA. In a dissent that was not joined by any other justices, Justice Alito conclude that the House BLAG had standing to appeal and observed that in the “narrow category of cases in which a court strikes down an Act of Congress and the Executive declines to defend the Act, Congress both has standing to defend the undefended statute and is a proper party to do so.” 570 U.S. 744 (2013), https://affordablecareactlitigation.files.wordpress.com/2019/06/united-states-v.-windsor.pdf.

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  17. Under the Supreme Court’s decision in U.S. v. Munsingwear, the “duty of the appellate court” is to “reverse or vacate the judgment below and remand with a direction to dismiss” if a federal civil case becomes moot when an appeal is pending. 340 U.S. 36 (1950), https://affordablecareactlitigation.files.wordpress.com/2019/06/us-v-munsingwear.pdf. Under the Supreme Court’s decision in U.S. Bancorp Mortgage Company. v. Bonner Mall Partnership, however, if a case pending appeal becomes moot due to a settlement among the parties, the lower court’s decision should not be vacated by the appeals court absent “extraordinary circumstances.” 513 U.S. 18 (1994), https://affordablecareactlitigation.files.wordpress.com/2019/06/us-bancorp.pdf.

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  18. Texas v. U.S., no. 19-1001, Br. for State Appellees at 34 (5th Cir. May 1, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/05/5c-appellees-brief.pdf. The federal government points out that prior to the TCJA, the shared responsibility payment for tax year 2019 and beyond would have been the greater of 2.5% of household income or $695. Texas v. U.S., no. 19-1001, Br. for the Fed. Defendants at 13 (5th Cir. May 1, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/05/5c-us-brief.pdf.

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  19. Texas v. U.S., no. 19-1001, State Defendants’ Opening Br. at 27 (5th Cir. March 25, 2019) (quoting NFIB), https://affordablecareactlitigation.files.wordpress.com/2019/03/5c-intervenor-defendants-opening-brief.pdf.

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  20. Id. at 28.

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  21. Texas v. U.S., no. 19-1001, Opening Br. of Intervener the U.S. House of Representatives at 9 (5th Cir. March 25, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/03/5c-houses-opening-brief.pdf.

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  22. Texas v. U.S., no. 19-1001, Br. for State Appellees at 40 (5th Cir. May 1, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/05/5c-appellees-brief.pdf.

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  23. Id. at 45-49.

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  24. Id. at 50.

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  25. Texas v. U.S., no. 19-1001, Opening Br. of Intervener the U.S. House of Representatives at 11 (5th Cir. March 25, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/03/5c-houses-opening-brief.pdf.

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  26. Texas v. U.S., no. 19-1001, State Defendants’ Reply Br. at 20 (5th Cir. May 22, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/05/5c-intervenor-defendants-reply-brief.pdf

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  27. Texas v. U.S., no. 19-1001, Opening Br. of Intervener the U.S. House of Representatives at 46-47 (5th Cir. March 25, 2019), https://affordablecareactlitigation.files.wordpress.com/2019/03/5c-houses-opening-brief.pdf.

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