A federal appeals court panel seemed prone Tuesday to back Republican efforts to kill Obamacare, with judges questioning how much of a mandate President Barack Obama’s signature healthcare law can be since Donald Trump signed a law ending any penalties for those who choose not to buy health insurance.
According to Reuters, the three-judge 5th U.S. Circuit Court of Appeals in New Orleans heard about 90 minutes of arguments in the case. The judges did not make a decision Tuesday, but their questioning of the lawyers before them seemed to suggest they were on the side of the 18 mostly Republican-controlled states suing to end the Affordable Care Act, aka Obamacare, aka the ACA:
The judges focused on whether Obamacare lost its legal justification after Trump in 2017 signed a law that eliminated a tax penalty used to enforce the law’s mandate that all Americans buy health insurance.
“If you no longer have the tax, why isn’t it unconstitutional?” Judge Jennifer Elrod, who was appointed by Republican President George W. Bush, asked during Tuesday’s hearing on a sweltering day in New Orleans.
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.
“There’s a political solution here that you, various parties are asking this court to roll up its sleeves and get involved in,” Engelhardt said.
In 2012, the U.S. Supreme Court ruled it was unconstitutional to force people to buy health insurance but it agreed that government could penalize people financially if they chose not to buy insurance.
However, in 2017, a Republican-controlled Congress sent Trump a tax bill that included outlawing the tax penalty for those not buying health insurance—a tax bill Trump signed into law.
Then in 2018, 18 mostly Republican-led states sued to end Obamacare, arguing before a federal court in Texas that with no tax penalty, Obamacare was simply forcing people to buy health insurance and thus was unconstitutional.
As Reuters notes, the judge in Texas sided with them:
In December 2018, U.S. District Judge Reed O’Connor in Fort Worth, Texas, agreed. O’Connor, who was also nominated by George W. Bush, said that because Obamacare called the mandate “essential,” the entire law must be struck down.
The case before the 5th U.S. Circuit is an appeal by a group of Democratic state attorneys general and the Democratic-controlled U.S. House of Representatives to have the Texas judge’s ruling overturned.
As the Los Angeles Times reports, California Attorney General Xavier Becerra, who is leading the coalition of Democrats in the ACA battle, said Tuesday that the state and its allies will continue to fight to save the law nationwide.
“Our state coalition made it clear: On top of risking lives, gutting the law would sow chaos in our entire healthcare system,” Becerra said. “We will fight the Trump administration tooth and nail.”
Some 20 million people have been able to get health insurance since the passage of Obamacare in 2010. In addition to providing a more affordable way to buy insurance, the law also makes it illegal for insurance companies to deny coverage to people with pre-existing health conditions and allows young people up to age 26 to remain on their parents’ health insurance.
Advocates fear if the federal appeals court strikes down Obamacare, millions of people will be without health insurance and the medical care and prescription drugs they need to survive.
In addition, as the Times points out, no matter how the court decides, the matter will surely be appealed to the U.S. Supreme Court, setting up the possibility that the issue of health insurance will be a major topic of discussion during the 2020 presidential election campaign.