On that path, the law made a stop Tuesday before a three-judge panel of the 5th Circuit Court of Appeals in New Orleans. Both sides presented , interrupted, at times, by sharp questions from two of the judges.

For those just tuning in, the Trump administration is not defending the nine-year-old ACA.

It instead has sided with the to have the law overturned.

In doing so, Department of Justice lawyers appeared to use strategies and take positions that sounded somewhat unconventional to a layperson. But are they?

KHN checked with some legal experts for their take.

For starters, this is the third time the administration has changed its position. Does this often happen?

No. It’s unusual for an administration to shift its own legal opinions during the case, say experts.

When the lawsuit was filed, the only the parts of the law tied to a requirement that most Americans carry insurance, the so-called individual mandate, should be tossed. (That’s a pretty big part, which includes protections for people with preexisting conditions.)

The red-state plaintiffs, conversely, argued that the entire law should go, pointing to Congress’ 2017 vote to zero out the individual mandate’s tax penalty. The Supreme Court’s 2012 decision to preserve the ACA hinged on that penalty.

But, last December, a in Texas sided with the states, saying the whole law should be tossed, which would affect provisions as diverse as the preexisting condition protections, Medicaid expansion and calorie counts on restaurant menus.

That’s when the its position to agree that, indeed, the whole thing had to go.

And that’s rare.

“You don’t usually say, ‘Oh, never mind,’” said Tom Miller, resident fellow at the conservative American Enterprise Institute. “It’s unusual to do that flip.”

But that’s not the last flip. came up in legal papers filed shortly before the Tuesday hearing and in oral arguments.

DOJ attorney August Flentje told the appeals court that, well, maybe only those provisions of the law that directly affect the plaintiffs — the 18 states — should be struck.

“It’s complicated,” he admitted, calling to mind a made in 2017 by President Donald Trump amid the repeal debate in Congress: “Nobody knew that health care could be so complicated.”

Even as this legal challenge works its way through the courts, the ACA remains the law of the land. The evolving legal positions, however, are fodder for professors.

“I’m teaching a class this fall and this gives me more material,” said Miller. “But if I had to consistently try to argue a position at the DOJ, I would go crazy.”

So, the government wants to skewer some provisions of the law, but not others — and have those changes apply only in some states. How would that work?  

Questions about that argument came from 5th Circuit Judge Jennifer Walker Elrod, appointed by President George W. Bush in 2007.

The government wants to have it apply “in certain states and strike it down in certain states?” Elrod asked. “The government believes that’s a possibility?”

Unasked but implicit: How would some states enforce the law and not others?

Flentje said “a lot of that would have to get sorted out” but not until after all the appeals in the case are exhausted.

Behind the argument may well be an ongoing dispute in the legal community about whether lower-court judges should make decisions that have nationwide implications, said John Malcolm, director of the conservative Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies. Still, it would be difficult, he said, for the ACA to be declared unconstitutional in some states, but remain in effect elsewhere.

Beyond that legal question, such a position has financial and policy implications for consumers and state regulators.

“It would create a very untenable situation for the rest of the states,” said Mila Kofman, executive director of the DC Health Benefit Exchange Authority, where individuals and small businesses buy health insurance.

Some of the very sickest people in the states where the rules were dropped would likely move to states keeping the preexisting condition protections so they could maintain their insurance, she said. That could drive up costs in those areas.

Arguments Tuesday revolved around whether parts of the law were “severable” from other parts. Did it seem the government wants it both ways — to toss the entire law, but also keep parts of it?

Elrod again queried Flentje.

The government wants the health insurance provisions to go, but “you would leave in the calorie guide?” Elrod asked, referring to the ACA’s requirement that chain restaurants display calorie counts of menu items.

Flentje said the government’s “argument on scope is totally separate from argument on severability.”

She pressed him for clarification: “So, are you saying it’s entirely inseverable, or arguing that some parts can be kept?”

The government’s position remains that “the entire act is not severable,” he replied, adding, however that the judgment could be “narrowed a bit to provisions that injure and impact the plaintiffs.”

He suggested some of those details would still have to be worked out.

“They’ve gone from saying a couple of provisions have to go to the whole thing has to go, to now there are some things we might not have to get rid of,” said Miller. “But they’ve never defined how far back down the ladder to go.”

A ruling by the appeals court isn’t expected for weeks or months, and some questions may well return to the district court.

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• Even as the Trump administration is arguing in court that the entire ACA should fall, it is relying on provisions in the law for a number of health care initiatives, including efforts to cut fraud, fight the opioid crisis and transform the Medicaid system.
• The House Rules Committee might have been an unusual venue for a hearing on setting up a single-payer, “Medicare-for-all” health system, but the discussion this week before the panel was surprisingly thoughtful and measured.
• The Congressional Budget Office report on a switch to a single-payer health system points out that although two bills before Congress would establish a “Medicare-for-all” plan, there are numerous ways to get universal health care and other countries have tried a variety of options that may be worth considering.
• The House bill for health spending seeks to block the Trump administration’s efforts to cut Title X reproductive health funding for Planned Parenthood.
• Meanwhile, two separate federal courts have issued nationwide injunctions barring the family planning regulations while court proceedings continue.
• That spending bill also would add $50 million for research on gun violence. Public health advocates hope researchers can identify factors that may lead to gun deaths. That could mimic some of the success highway experts have had in finding ways to reduce traffic deaths.

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Meanwhile, states with legislatures and governors that oppose abortion are racing to pass abortion bans and get them to the Supreme Court, where, they hope, the new majority there will overturn or scale back the current right to abortion.

This week’s panelists are Julie Rovner of Kaiser Health News, Rebecca Adams of CQ Roll Call, Anna Edney of Bloomberg News and Alice Miranda Ollstein of Politico.

Also, Rovner interviews KHN’s Paula Andalo, who wrote the latest “Bill of the Month” feature about a very expensive knee brace.

If you have an exorbitant or inexplicable medical bill you’d like to submit for our series, you can do that here.

Among the takeaways from this week’s podcast:

• Although Trump’s political base may support his actions to undermine the entire federal health law, Republican lawmakers are flummoxed. They are hesitant to take up the cause because Democrats used the issue so effectively against Republicans in last fall’s election. They also know that many Republicans like key provisions of the health law, such as its closing of the doughnut hole in the Medicare drug benefit, letting adult children stay on parents’ plans up to the age of 26 and protecting people with preexisting conditions.
• The unveiling this week of a new Democratic health initiative — Medicare X — signals an increasing push by party moderates to move away from progressives’ call to dramatically reshape American health care with a “Medicare-for-all” system. Medicare X is a much smaller initiative that would allow some people to buy in to the Medicare system, but it would be rolled out gradually over a number of years.
• In other ACA news, a federal judge struck down the administration’s regulations allowing small businesses to join association health plans, saying it was an end run to avoid the health law. Thousands of people could be affected by the decision, and Labor Secretary Alex Acosta said he will decide by the end of the May whether to appeal.
• Anti-abortion activists in many states are pushing new laws to test whether the retirement last summer of Justice Anthony Kennedy has left the Supreme Court more willing to turn back the Roe v. Wade decision. Among the types of cases going forward are state laws that would ban abortions once a fetal heartbeat could be determined, which often happens about six weeks into a pregnancy or before many women even know they are pregnant.
• Despite a stiff rejection last week by a federal judge who overturned the Trump administration’s permission for work requirements in the Medicaid expansion approved in Arkansas and Kentucky, federal officials said that Utah could go forward with a plan to start work requirements as part of a partial expansion. Supporters of the ACA insist that expansion should be for anyone earning up to 138% of the federal poverty level. But the issue is tough for Democrats, some of whom say a partial expansion is better than none.

Ask Us Anything!

Do you have a health policy question you’d like the panelists to answer? You can send it to whatthehealth@kff.org. Please include where you’re from and how to pronounce your name.

Plus, for extra credit, the panelists recommend their favorite health policy stories of the week they think you should read too:

Julie Rovner: Vox.com’s “,” by Sarah Kliff

Rebecca Adams: CQ Roll Call’s “” by Sandhya Raman

Anna Edney: The Baltimore Sun’s “” by Ian Duncan and Yvonne Wenger

Alice Miranda Ollstein: The New York Times’ “,” by Dr. Tim Lahey

To hear all our podcasts,Ìýclick here.

And subscribe to What the Health? on ,ÌýÌý´Ç°ùÌý.

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A group of 17 Democratic state attorneys general formally appealed the Dec. 14 decision in Texas v. U.S. issued by U.S. District Judge Reed O’Connor. In the case filed by 18 Republican state attorneys general and two GOP governors, that when Congress in 2017 reduced the tax penalty for not having insurance to zero, the rest of the law became invalidated.

“Our coalition of attorneys general has been working around the clock to challenge the decision from the Northern District of Texas that threatens our entire health care system,” said California AG Xavier Becerra, who is leading the Democratic group. “This case could impact children, seniors, women, families and workers who have their own insurance through employers,” he said.

The far-reaching impact of invalidating the law cannot be overstated. Even Republican health efforts — including many Trump administration initiatives — would be threatened by the disappearance of the ACA.

There was a brief lag between O’Connor’s opinion and the Democrats’ appeal because the judge did not issue last month’s ruling as a formal, final decision, given it didn’t address other aspects of the GOP challenge. At the request of the Democratic attorneys general, on Dec. 30 for this part of the case, and clarified that the law would remain in effect during the appeals process.

Separately, the brand-new Democratic majority in the U.S. House voted to support the appeal of the decision on their first day in charge of the chamber.

They approved language authorizing House Speaker Nancy Pelosi “to intervene, otherwise appear, or take any other steps in any other cases involving the Patient Protection and Affordable Care Act,” better known as the ACA.

House Democrats also to intervene in the defense of the ACA against the GOP-led lawsuit.

Republicans on the House floor were not impressed. “That effort does not preserve preexisting conditions,” Rep. Greg Walden (R-Ore.), now the ranking member of the House Energy and Commerce Committee, said on the floor. Walden, who helped lead the GOP’s unsuccessful “repeal-and-replace” effort in the last Congress, suggested that lawmakers should instead pass a law reaffirming the preexisting condition protections.

Some backers of the law agreed with Walden. “The House should pass a bill. Send it to the Senate. See what happens,” tweeted University of Michigan law professor Nicholas Bagley.

In written with fellow Michigan law professor Richard Primus, Bagley said Congress could more effectively remove the legal threat to the law by raising the mandate penalty to a dollar, by repealing the mandate entirely or by clarifying that eliminating the mandate penalty does not require the invalidation of the rest of the law.

“Any of these solutions could be accomplished in a one-sentence statute, and any one of them would end the Texas lawsuit,” they wrote.

California Healthline’s California politics correspondent Samantha Young contributed to this report.

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Now, as he wages a bitter fight for re-election to a seat he won by 20 percentage points just two years ago, even some of his supporters have turned virulently against him. The reason? His new reputation as the turncoat whose legislation almost repealed the Affordable Care Act.

Like many Republican candidates struggling to explain how they could support protections for preexisting conditions while also supporting changes that would gut them, MacArthur has offered vague but persistent promises to shield Americans with medical conditions.

But he also wrote the Republican legislation that would have allowed states to charge those Americans higher premiums or limit what services are covered, gaining enough support for the repeal bill to clear the House last year.

As such, MacArthur’s candidacy has become a kind of Rorschach test for Republicans’ repeated attempts to repeal and otherwise undermine the Affordable Care Act — and how much candidates in swing districts will pay for those efforts.

If this New Jersey district is any indication, it could be a lot.

Sue Coleman, 64, split her ballot in 2016, voting for MacArthur and Hillary Clinton. “I thought he was a moderate, so I voted for him,” she said. Today, she feels so angry that she arrived at a recent political event at the 45th Street Pub here wearing an unruly wig, a full beard and mustache paired with a dark suit and blood-red tie — imitating one of the congressman’s top aides who has become a familiar gatekeeper as she and others have personally lobbied MacArthur. The crowd laughed and cheered.

Earlier that day, dozens of people, most of them women, gathered in a strip mall parking lot before scattering to knock on doors on behalf of MacArthur’s Democratic challenger, Andy Kim. MacArthur “didn’t listen to the people,” said Nancy Keegan, 57, of Delran Township, N.J., as she stood with her sisters.

Some of the volunteers couldn’t help but point out that the high school across the street was where MacArthur held a nearly five-hour town hall last year that for the irate crowd of constituents and protesters who shouted down explanations of his attempts to resuscitate the repeal effort. MacArthur has made fewer, and more limited, public appearances since then.

In a sign of the race’s power to help Democrats reclaim the House, members of Planned Parenthood, NARAL and Rep. Katherine Clark (D-Mass.) were on hand to energize the sweatshirt- and sneaker-clad crowd. While it has been about a year and a half since MacArthur bolstered the Republican repeal effort, the anger hasn’t faded. Said Susan Harper, 64, also of Delran Township and Keegan’s sister: “I don’t think that’s going away.”

MacArthur, 58, a wealthy insurance executive who has received hundreds of thousands of dollars in corporate contributions and , is locked in “a true toss-up” this year, said David Wasserman, an editor at the Cook Political Report. Kim, 36, — a former Obama administration national security official — had had by the end of September.

Trump won MacArthur’s 3rd Congressional District — which spans the state from the suburbs outside Philadelphia to the tourist destinations and retirement communities of the Jersey Shore — by about 6 points. In spring 2017, as House Republicans bickered over how to repeal the health care reform law, MacArthur — then a leader of the chamber’s moderate Republican caucus — with far-right members. It would have allowed states to circumvent some of the law’s protections for people with medical conditions, if they set up high-risk insurance pools to help cover those patients.

Through that compromise, known as the MacArthur Amendment, the bill passed the House without any Democratic support. It later stalled in the Senate.

Less than a week later, appearing at that town hall in his district’s Democratic stronghold, MacArthur spoke of losing his 11-year-old daughter, Grace, to a rare neurological condition, a painful story he had rarely discussed in public.

The death of MacArthur’s daughter “is the very reason his constituents do not understand his actions,” said Maura Collinsgru, the health care program director at New Jersey Citizen Action, a liberal watchdog group. “How could you, having had that experience, justify your votes?”

Democrats across the country have been hitting their Republican opponents hard on the issue in light of the repeal effort and a legal effort by many Republican state attorneys general to end protections for preexisting conditions. Republicans are fighting back with promises but few plans to match. During a recent forum on a local TV station, MacArthur said: “I fought to protect preexisting conditions, and I’ve always supported that.”

The MacArthur campaign did not respond to multiple requests for an interview.

Kim, who has never held elected office, started considering whether to run when MacArthur’s compromise was released, he said. But he was convinced after doctors warned him and his wife that their unborn son was dangerously underweight.

“I told my wife that if we could get through this, and if our baby is born and he is stable, I want to do what I can to hold my representative accountable for what he did,” he said. Today, Kim said, his son is doing fine.

Kim has framed himself as the anti-MacArthur, vowing to hold in-person town halls once a month and reject corporate contributions.

Further complicating MacArthur’s re-election prospects is his vote for the Republican tax bill, which the nonpartisan Tax Policy Center said would be most damaging for New Jersey, where it 10.2 percent of households would see their federal taxes increase this year. He was to support it.

Mike DuHaime, a strategist who advised former Republican Gov. Chris Christie on his 2009 campaign, said Kim is benefiting from the “historical and partisan headwinds” facing Republican incumbents in blue states like New Jersey.

“Anyone who thinks Tom MacArthur doesn’t care about those with preexisting conditions is grossly mistaken and completely unaware of the type of person he is,” he wrote in an email. “He was trying to forge progress, and when you do that, you will be criticized.”

But in a time of such intense political loyalties, it is unclear whether MacArthur’s role in trying to repeal the Affordable Care Act would be damaging enough to oust him.

“It seems to me in this election people have chosen their tribal corners and issues have less potency overall,” said Tom Moran, the editorial page editor and political columnist at the state’s largest newspaper, the Star-Ledger.

“But if there is one issue that penetrates,” he added, “it’s health care.”

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