Judges grill Obamacare defenders over individual mandate

Grant Boone
July 10, 2019

A federal appeals court in New Orleans is hearing a case in which a lower court judge ruled the Affordable Care Act unconstitutional.

Judge Kurt Engelhardt, a Trump appointee, asked why if Congress thought the law had so many "excellent ideas" unrelated to its "linchpin" mandate, it would not have taken steps to ensure the rest of the law would not be struck down as well. A host of ACA provisions would be eliminated, including: "protections for people with pre-existing conditions, subsidies to make individual health insurance more affordable, expanded eligibility for Medicaid, coverage of young adults up to age 26 under their parents' insurance policies, coverage of preventive care with no patient cost-sharing, closing of the doughnut hole under Medicare's drug benefit, and a series of tax increases to fund the new benefits".

The appeals court case, heard in New Orleans on Tuesday, may also complicate the legacy of the chief justice, who has attempted to keep the Supreme Court out of politics but could soon face another presidential election-year health care dispute.

The Democratic lawyers fighting to preserve the law argued that the Republican Congress had tried and failed to repeal the ACA two years ago and that by eliminating the penalty in late 2017 as part of broad tax changes, it had not touched any other parts of the sprawling statute.

With no tax penalty now in effect, the Texas lawsuit argues, the individual mandate is unconstitutional and the entire law must fall without it.

Wisconsin Attorney General Josh Kaul, who withdrew Wisconsin from the lawsuit, said overturning Obamacare could destabilize the entire health system nationwide.

Texas' odds of total vindication remain in question after almost two hours of questions before the three judges.

As Judge Jennifer Walker Elrod questioned the law's supporters - attorneys for 20 Democratic-leaning states and the House of Representatives - she said the law's "command" that people buy insurance appeared intact without the tax penalty and she questioned the mandate's constitutionality.

For almost two hours in a New Orleans courtroom, the judges - two Republican appointees and one by Democratic President Jimmy Carter - voiced skepticism about arguments that the individual mandate is now essentially just a toothless government suggestion.

The court made no decision on Tuesday.

In a brief filed with the appeals court, legal scholars from both sides of the fight over the ACA agreed that the Texas lawsuit's underlying claim makes no sense. "When the law was stripped of its revenue-raising penalty, the mandate and the entire law are now unconstitutional", Texas Attorney General Ken Paxton said Tuesday. The rest of the law should stay, the Justice Department argued.

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Robert Henneke, the Texas Public Policy Foundation general counsel and the lead counsel for the individual plaintiffs, told reporters after the hearing it was a "good day".

Pro-ACA groups warned of the peril to consumers if the law were struck down.

Approximately 700,000 Coloradans have pre-existing conditions protected by Obamacare.

Obamacare, the signature domestic achievement of Trump's Democratic predecessor has been a political flashpoint since its passage.

"Why does Congress want the ... judiciary to become the taxidermist for every legislative big-game accomplishment that Congress achieves?"

Collins, a hero of the Affordable Care Act for her vote to protect the law, turned around and voted for the GOP tax scheme in 2017.

Numerous points and counterpoints laid out at the hearing have been part of the case since it began.

Legal scholars, including many on the right, have always been dubious about Texas' arguments, particularly on the question of severability.

"The courts then said this was a reasonable way to let the judicial branch have the final say", Flentje said.

The Trump administration has taken several different positions on the lawsuit. The law now protects those individuals from denial of coverage or steeper prices because they have chronic illnesses.

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