Judge dismisses Affordable Care Act suit that also challenged appointment of acting attorney general
By RACHEL WEINER AND AMY GOLDSTEIN | The Washington Post | Published: February 2, 2019
WASHINGTON — A federal judge on Friday dismissed a lawsuit by Maryland's Democratic attorney general that sought to protect the Affordable Care Act from threats by the Trump administration to undermine it.
Brian Frosh sued the federal government in September to ensure the continued enforcement of key aspects of the 2010 health-care law, including protections for people with preexisting conditions.
As part of the suit, Maryland also argued that acting attorney general Matthew Whitaker's appointment was unconstitutional.
U.S. District Judge Ellen Hollander sided with the Justice Department and dismissed Frosh's claims that the risk of the ACA's termination was harming Maryland as based in speculation.
"In effect, the state proclaims that the sky is falling," the judge wrote. "But falling acorns, even several of them, do not amount to a falling sky."
Because she found the lawsuit moot, the challenge to Whitaker's appointment as the person who would be in court defending future changes also was moot, she wrote.
Frosh's suit has been a counterpoint of sorts to a federal lawsuit in Texas challenging the ACA's constitutionality brought by that state's Republican attorney general and numerous GOP counterparts.
In mid-December, a conservative federal judge in Fort Worth ruled the entire law unconstitutional. That case is being appealed and is considered likely to reach the Supreme Court, which has twice before upheld the ACA's constitutionality.
The ruling in the Texas case, which has sent shivers through much of the health-care industry about the law's future, figured in the Maryland judge's logic.
In arguing the court should affirm the ACA is constitutional, the Maryland suit said, in part, that the administration's eagerness to sabotage the law was evident from the decision by then-U.S. Attorney General Jeff Sessions not to defend it against the Texas challenge.
But Hollander noted in her opinion that the administration said just after the Texas ruling that it would continue to carry out the law while that case is appealed.
"The Trump administration's decision not to defend parts of the ACA in court is not the same as failing to enforce it," Hollander wrote. "The former amounts to a litigation position, the latter to potentially upending an industry that accounts for nearly one-fifth of the country's economy."
Although "the president's profound disdain for the ACA cannot be seriously disputed," she wrote, "neither the president's zealous attempts to repeal the statute, nor his derisive commends about it, support an inference that he will fail to enforce the law."
Should the administration stop enforcing the ACA, the judge said, the lawsuit could be revived.
"The effect of the court's ruling today is simply that we must wait to pursue our case," Frosh said.
In an interview, he said he understood the judge's reasoning, saying it paralleled the Supreme Court's divided ruling over the summer upholding the administration's third attempt at a travel ban. The high court majority ruled the ban was within President Donald Trump's authority because its text does not mention religion, despite his rhetoric toward Muslims.
Still, Frosh said, the ACA deserves court protection from a hostile president: "If you look at his actions, he's done everything within his power to kill the Affordable Care Act."
Maryland had also asked Hollander to declare that Whitaker was unconstitutionally appointed.
"Who the attorney general is is at the core of this lawsuit," Frosh had said. Whitaker could not serve as acting attorney general, he argued, because he was not confirmed by the Senate and was outside the line of succession.
Trump has nominated William Barr to replace Sessions, but he has not yet been confirmed. In court in December in the Maryland case, a Justice Department attorney would not say whether Whitaker was involved in discussions about the future of the ACA.
Hollander declined to weigh in, saying she would not rule on a contested issue as part of a moot lawsuit. Federal courts in Kansas and Texas, she noted, have ruled Whitaker was legally appointed.
Last month, the Supreme Court rejected without comment a Nevada case challenging Whitaker's appointment.