House of Representatives of the 116th Congress, represented by the General Counsel of the House of Representatives, Munger, Tolles & Olson, and CAC, moved to intervene, and the Fifth Circuit granted the motion.
California and other states that had previously intervened in the case appealed to the U.S. The district court agreed with the plaintiffs, holding that the individual mandate is unconstitutional, that the mandate is inseverable from the rest of the ACA, and that the entire ACA therefore cannot stand. While the Department of Justice normally defends the validity of Acts of Congress when they are challenged in court, during the Trump administration, the Department joined the plaintiffs in attacking the validity of the individual mandate and argued that other key provisions of the law are inseverable from its individual mandate and thus should be invalidated. District Court for the Northern District of Texas, arguing that the law’s individual mandate provision (Section 5000A) is unconstitutional, and that the rest of the law is inseverable from that provision and therefore must also fall. In February 2018, Texas and 19 other states, as well as two individual plaintiffs, filed a complaint in the U.S. Employers should closely monitor for future developments and continue reasonable contingency planning should the ETS ultimately survive challenge.In 2010, Congress passed the Patient Protection and Affordable Care Act (ACA) to increase the number of Americans covered by health insurance, decrease the costs of health care, and provide important protections to health care consumers. However, this is far from the last word in litigation over the enforceability of the ETS. What Should Employers Do Now? Challenges to the ETS were expected, and the Fifth Circuit has become the first court to take action. And, of course, decisions of the courts of appeals may be reviewed-and reversed-by the Supreme Court. The circuit selected-if not the Fifth-can lift the Fifth Circuit’s stay. All challenges will be consolidated and heard in the circuit selected by the lottery. Challenges filed within 10 days of OSHA’s publication of the ETS are included in the lottery. The rules of the Judicial Panel on Multidistrict Litigation provide for a lottery to determine which circuit hears the merits of a challenge to a federal agency decision when challenges are filed in multiple circuits.
The Fifth Circuit was the first to issue a stay. In addition to the Fifth Circuit challenge, actions have been filed in the Sixth, Eighth, and Eleventh Circuits. On the date that the ETS was published, challenges were filed in 4 different circuits by separate coalitions of states. What Happens Next? The Fifth Circuit is one of 13 appellate courts that sit below the Supreme Court. Further, the earliest the ETS requires compliance with any of its provisions is December 5, 2021, and employees have until Januto be vaccinated or begin regular testing, meaning that the stay has no immediate practical effect. However, the Fifth Circuit’s stay is temporary and can be lifted-the Fifth Circuit has not made a decision on whether or not the challenge to the ETS has merit. What Does This Mean? Until further court action, enforcement of the ETS is stayed.