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Hawaii Continues Fight to Protect the Affordable Care Act

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DEPARTMENT OF THE ATTORNEY GENERAL DAVID Y. IGE GOVERNOR CLARE E. CONNORS ATTORNEY GENERAL For Immediate Release News Release 2019-26 May 23, 2019 Hawaii Continues Fight to Protect the Affordable Care Act Attorney General Joins Coalition of 21 Attorneys General Challenging Plaintiffs’ Lack of Standing in Texas v. US HONOLULU – Attorney General Clare E. Connors, joined a coalition led by Attorney General Becerra of 20 states and the District of Columbia, in filing a response in Texas v. U.S., defending the Affordable Care Act (ACA) and the healthcare of tens of millions of Americans. The brief, filed in the U.S. Court of Appeals for the Fifth Circuit on Wednesday, argues that every provision of the ACA remains valid. It further argues that the position taken by the Trump Administration and the Texas-led coalition is legally incorrect and dangerous to our healthcare system. "This is another important step in our ongoing efforts to ensure affordable health care for Hawaii residents and millions of other Americans," Attorney General Connors said. The plaintiffs, two individuals and 18 States led by Texas, filed this lawsuit in February 2018, challenging one provision of the Affordable Care Act—the requirement that individuals maintain health insurance or pay a tax. Texas’ lawsuit came after Congress reduced that tax to zero dollars in December 2017. Opponents of the ACA had attempted and failed to repeal the ACA over 70 times since its instatement. The plaintiffs argued that this reduction in the tax made the minimum coverage provision unconstitutional. They further argued that this provision could not be “severed” from the rest of the ACA, meaning that the entire Act must be struck down. In the district court, the Trump Administration agreed with the plaintiffs that the minimum coverage provision, as amended, was unconstitutional, and further argued that it could not be severed from two of the ACA’s important provisions—the community-rating and guaranteed-issue reforms. Then, in March, the Trump Administration signaled that it would change course and argue that the entire ACA is now invalid. The Trump Administration filed its brief in support of its new position on May 1, 2019, alongside a brief filed by the Texas-led coalition and the two individual plaintiffs. The most recent filing responds to these arguments by the Trump Administration and the plaintiffs, and continues the legal defense of the ACA, the backbone of our healthcare system. In their brief, the Attorneys General argue that none of the plaintiffs Department of the Attorney General News Release 2019-26 Page 2 have standing to challenge the individual mandate provision, because the individual plaintiffs are not injured by a provision that now offers a lawful choice between buying insurance and paying a zero-dollar tax. The Attorneys General further argue that the individual mandate remains constitutional, and is similar to many other laws that Congress has adopted. The brief further argues that, even if the individual mandate is unconstitutional, it should be severed from the rest of the ACA because Congress clearly wanted to preserve every provision of the Affordable Care Act when it reduced the tax amount to zero. Moreover, as the Attorneys General explained in their opening brief, this case would wreak havoc on the entire American healthcare system and risk lives in every state. If affirmed, the District Court’s decision would affect nearly every American, including: • 133 million Americans, including 17 million kids, with pre-existing health conditions. • Young adults under 26 years of age, who are covered under a parent’s health plan. • More than 12 million Americans who received coverage through Medicaid expansion. • 12 million seniors who receive a Medicare benefit to afford prescription drugs. • Working families who rely on tax credits and employer-sponsored plans to afford insurance. Oral argument in the matter is set in the Fifth Circuit for July 9, 2019, in New Orleans. Copies of the briefs are attached. # # # For more information, contact: Krishna F. Jayaram Special Assistant to the Attorney General (808) 586-1284 Email: [email protected] Web: http://ag.hawaii.gov Twitter: @ATGHIgov Case: 19-10011 Document: 00514887395 Page: 1 Date Filed: 03/25/2019 No. 19-10011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________ STATE OF TEXAS; STATE OF WISCONSIN; STATE OF ALABAMA; STATE OF ARIZONA; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF INDIANA; STATE OF KANSAS; STATE OF LOUISIANA, STATE OF MISSISSIPPI, by and through Governor Phil Bryant; STATE OF MISSOURI; STATE OF NEBRASKA; STATE OF NORTH DAKOTA; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF ARKANSAS; NEILL HURLEY; JOHN NANTZ, Plaintiffs – Appellees v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF HEALTH & HUMAN SERVICES; ALEX AZAR, II, SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES; UNITED STATES DEPARTMENT OF INTERNAL REVENUE; CHARLES P. RETTIG, in his Official Capacity as Commissioner of Internal Revenue, Defendants – Appellants STATE OF CALIFORNIA; STATE OF CONNECTICUT; DISTRICT OF COLUMBIA; STATE OF DELAWARE; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF KENTUCKY; STATE OF MASSACHUSETTS; STATE OF NEW JERSEY; STATE OF NEW YORK; STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF RHODE ISLAND; STATE OF VERMONT, STATE OF VIRGINIA; STATE OF WASHINGTON; STATE OF MINNESOTA, Intervenor Defendants – Appellants ____________________ On Appeal from the United States District Court for the Northern District of Texas No. 4:18-cv-167-O Hon. Reed O’Connor, Judge ____________________ STATE DEFENDANTS’ OPENING BRIEF ____________________ Counsel listed on the inside cover Case: 19-10011 Document: 00514887395 Page: 2 Date Filed: 03/25/2019 Xavier Becerra Attorney General of California Edward C. DuMont Solicitor General Michael L. Newman Senior Assistant Attorney General Michael J. Mongan Samuel P. Siegel Deputy Solicitors General Kathleen Boergers Supervising Deputy Attorney General Nimrod P. Elias Neli N. Palma Deputy Attorneys General CALIFORNIA DEPARTMENT OF JUSTICE 1300 I Street Sacramento, CA 95814 (916) 210-6269 [email protected] March 25, 2019 Attorneys for the State of California Additional Counsel Listed on Signature Page Case: 19-10011 Document: 00514887395 Page: 3 Date Filed: 03/25/2019 CERTIFICATE OF INTERESTED PERSONS Because the state defendants are governmental entities, a certificate of interested parties is not required. 5th Cir. R. 28.2.1. s/ Samuel P. Siegel Samuel P. Siegel Case: 19-10011 Document: 00514887395 Page: 4 Date Filed: 03/25/2019 STATEMENT REGARDING ORAL ARGUMENT This appeal concerns a constitutional challenge to the Patient Protection and Affordable Care Act of 2010. The decision below declared one provision of that Act, as amended, unconstitutional, and held that the unconstitutional provision could not be severed from the remainder of the Act. That ruling, if implemented, would seriously disrupt the nation’s healthcare system. Oral argument is therefore appropriate in this case. Case: 19-10011 Document: 00514887395 Page: 5 Date Filed: 03/25/2019 TABLE OF CONTENTS Page Introduction ................................................................................................................ 1 Jurisdiction ................................................................................................................. 3 Statement of issues ..................................................................................................... 4 Statement of the case.................................................................................................. 4 A. The Affordable Care Act ....................................................................... 4 B. Attempts at repeal ................................................................................ 10 C. Court challenges .................................................................................. 12 D. The 2017 amendment .......................................................................... 16 E. This litigation ...................................................................................... 17 Summary of argument .............................................................................................. 21 Standard of review ................................................................................................... 25 Argument.................................................................................................................. 25 I. The plaintiffs do not have standing ............................................................... 25 II. The minimum coverage provision remains constitutional ............................ 27 III. If the minimum coverage provision is now unconstitutional, it is severable from the rest of the ACA ............................................................... 33 Conclusion ............................................................................................................... 47 i Case: 19-10011 Document: 00514887395 Page: 6 Date Filed: 03/25/2019 TABLE OF AUTHORITIES Page CASES Ayotte v. Planned Parenthood of N. New Eng. 546 U.S. 320 (2006) ..........................................................................33, 34, 35, 40 Crane v. Johnson 783 F.3d 244 (5th Cir. 2015) .............................................................................. 26 Florida ex rel. Atty. Gen. v. U.S. Dep’t of Health and Human Servs.
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