As previously reported, in December 2018, the District Court for the Northern District of Texas in Texas v. United States issued an order declaring that the individual mandate of the Affordable Care Act (ACA) is unconstitutional, that the remaining provisions of the ACA are not severable from the mandate provision, and that the entirety of the ACA, which includes the BPCIA, is therefore invalid.
The case is now on appeal to the Court of Appeals for the Fifth Circuit. On May 1, the DOJ submitted a brief with the appellate court, arguing that the district court’s judgment should be affirmed. When the case was originally before the district court, the DOJ had argued that the remainder of the ACA was severable from the individual mandate. In its recently-filed brief, however, the DOJ stated that that “upon further consideration and review of the district court’s opinion, it is the position of the United States that the balance of the ACA also is inseverable and must be struck down.” While the DOJ’s brief did not specifically reference the BPCIA, the DOJ argued that “comparatively ‘minor,’ ancillary provisions that were tacked on to the bill should be invalidated once the core provisions have been struck down.”
Stay tuned as we continue to monitor developments in this case and any impact on the BPCIA.