A protracted game of political chess 

On Friday, Dec. 14, O'Connor declared the ACA unconstitutional due to the zeroed-out individual mandate penalties. According to O'Connor, when Congress reduced the health care penalty to zero, it was no longer exercising its taxing power and therefore invalidated the Supreme Court's 2012 reasoning for upholding the ACA as constitutional.

Following O'Connor's decision, a number of states announced they'll appeal the ruling to the Fifth Circuit Court of Appeals. Since then, O'Connor stayed his ruling for the duration of the appeals process, allowing the ACA and all its aspects, including its employer compliance requirement, to remain in effect throughout all challenges to his ruling.

In the meantime, the House geared up to defend the ACA in court. On Jan. 3, the House voted through a package of operation rules, one of which gave it power to intervene in the ACA court case and defend the law. Less than a week later, the House voted again on the same legislative action, but this time as a standalone rule. By holding a vote solely for intervening in the ACA, the Democrats worked to pressure the Republicans to take a stand on health care. In the year's first move of health care political chess, three Republicans voted in favor of the rule, setting the stage for the legislative debates and political platforms in 2020.

Two possible paths forward

The earliest the Fifth Circuit Court of Appeals will hear the appeal to O'Connor's ruling is this summer. At that time, the ruling will either be upheld or overturned. I and numerous other legal experts expect the Fifth Circuit to overturn O'Connor's decision, which bucked anticipated legal jurisprudence by striking down the entirety of the law as unconstitutional. If the ruling is overturned and the plaintiffs bring their case before the Supreme Court, the Supreme Court is unlikely to hear it, meaning the Fifth Circuit's decision to overturn O'Connor's ruling would stand (as would the ACA).

On the other hand, if the Fifth Circuit upholds the ruling, many believe the case would head to the Supreme Court, who likely wouldn't hear the case until summer 2020 at the earliest. Until then, the ACA would remain in effect. When the Supreme Court finally hears the case (assuming this case goes the distance), many expect the Supreme Court will hold the ACA constitutional as it has in the past.

However, the entire case against the ACA could become moot if Congress makes certain legislative changes to the law. For instance, if the penalty for the individual mandate is revised or revoked, the case will be thrown out.

What to do while the appeal is pending 

Throughout the appeals process, the ACA remains the law of the land. Employers need to continue complying, and make sure they meet the March 4 fulfillment deadline or the April 1 e-filing deadline.

As the hearings continue, your clients will have questions about where the case stands, the legality of the ACA, and their requirements to comply. It's your job to be prepared and even proactively inform them of any changes. Whether it's by staying abreast of all communications from your professional association or consulting with your benefits lawyer, have a plan in place to ensure you're ready to expertly advise your clients. With 2020 on the horizon, lining up your resources now to stay informed of the law will help you effectively guide your clients and better position yourself as an invaluable resource to them.

Arthur Tacchino, J.D., is an ACA expert and the Chief Innovation Officer at SyncStream Solutions, a company providing ACA reporting and compliance solutions.