Appeals Court Signals Sympathy to Bid to Strike Down Obamacare

Henrietta Strickland
July 10, 2019

"If you no longer have a tax, why isn't it unconstitutional?" On appeal, the Justice Department changed course and decided the entire ACA should be invalidated.

"A lot of this stuff has to be sorted out, and it's complicated", replied the attorney, August Flentje, as he shifted uncomfortably. "We haven't gone down that road yet".

Two Republican appointees on the three-judge panel, Kurt Engelhardt and Jennifer Walker Elrod, asked tough questions of Democrats defending the health law in a case that hinges on Congress' 2017 decision to zero out the "individual mandate" tax for shirking insurance. The House intervened after Democrats won control in November's elections after many focused their campaigns on defending Obamacare.

An estimated 52 million Americans have preexisting health conditions that insurers could have denied coverage to under pre-ACA rules in most states, the foundation said.

In challenging the law anew, "Obamacare" opponents cited the U.S. Supreme Court's 2012 ruling upholding the legislation.

The Trump administration supported O'Connor's ruling, while a separate coalition of states led by California's Democratic attorney general, Xavier Becerra, and the House general counsel defended the law.

Murphy says he is most concerned that if the lower court ruling in the Texas case is upheld and the health law struck down, Republicans "won't be able to come up with a plan" to put the health care system back together. The ultimate outcome will affect protections for people with pre-existing conditions; Medicaid expansions covering roughly 12 million people; and subsidies that help about 10 million others afford health insurance.

Federal appeals court judges expressed skepticism Tuesday that the almost decade-old law that refashioned the nation's health-care system should remain intact after Congress eliminated a tax penalty for Americans who fail to carry health insurance.

With no tax penalty now in effect, the Texas lawsuit argues, the individual mandate is unconstitutional and the entire law must fall without it. Texas-based U.S. District Judge Reed O'Connor agreed in a December ruling. Traditionally, an administration - even one that did not work to pass the law in question - defends existing law in court.

Engelhardt voiced frustration that lawmakers haven't resolved the situation on their own.

"Can't they do this tomorrow?" asked the former Louisiana trial judge, who joined the appeals court previous year. "There's a political solution and you're asking this court to roll up its sleeves and get involved in it".

The Supreme Court's conservative majority argued that Congress could not constitutionally order people to buy insurance.

On Tuesday, Schumer and House Speaker Nancy Pelosi held up signs with the faces of Americans who they say would be hurt if Republicans succeed in their efforts to overturn the ACA.

But after Trump signed a tax bill that reduced the penalty to zero, a coalition of GOP-led states sued, alleging the penalty's elimination rendered Obamacare unconstitutional. Justice Department officials argued at the time thatthe law's insurance requirement and consumer protections were no longer valid without any penalty but that other parts of the law should stand.

O'Connor, who is something of a favorite for the Texas Attorney General's Office, has heard a disproportionate number of the state's challenges to the federal government.

"I'm not in a position to psychoanalyze Congress, and this court is not in a position to engage in psychoanalytical tasks", Hawkins said.

The Trump administration had initially opposed certain parts of the law tied to the mandate.

Several times, Flentje seemed to nearly beg the judges to resolve the impasse between the White House and Congress, as the Supreme Court did when Obama refused to defend the federal law denying recognition to same-sex marriages.

In March, he said, "hopefully, we will win at the appellate division and go to the Supreme Court to terminate Obamacare".

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.

Other reports by Click Lancashire

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