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Obamacare: Appeals court likely to rule the ACA is unconstitutional

10 July 2019

The fate of former President Barack Obama's health care law, and its coverage and insurance protections for millions of Americans, is again being argued before a federal court.

In challenging the law anew, "Obamacare" opponents noted the 2012 ruling of a divided Supreme Court that upheld the law. Elrod was nominated by President George W. Bush in 2007.

The lawsuit, first filed in 2018, contends that the Affordable Care Act's requirement that most everyone have insurance coverage - otherwise known as the individual mandate - is unconstitutional. Traditionally, an administration - even one that did not work to pass the law in question - defends existing law in court.

The law's supporters say Congress clearly didn't want "Obamacare" dismantled when it eliminated the tax in 2017.

Senate Majority Leader Mitch McConnell said Tuesday if the courts strike down core protections, then lawmakers will work "quickly, on a bipartisan basis, to restore it".

On Friday, California Attorney General Xavier Becerra - who is leading a coalition of 20 blue states in defending the ACA - argued that the removal of the individual mandate did not invalidate the law. "You left the mandate in place and put the tax at zero.' But there's another way to read it", Letter argued. [It] made the tax zero. "I know Texas is unhappy with what Chief Justice Roberts did".

Two of the three judges on the appeals court panel - both appointed by Republican presidents - repeatedly pressed California's deputy solicitor general, who is defending the law, to explain why it should remain on the books after Congress in 2017 scrapped a penalty against people who didn't have health insurance. A lower court agreed, but that decision is being appealed by 17 states. The hearing today is a repeal of Texas v. On the other side, conservative groups proclaimed that an end to the ACA would usher in a new era of more-affordable insurance and greater choice of health plans.

"The law as it stands today is a stand-alone command to buy an insurance product the government deems suitable", he said. But August Flentje, special counsel to the Justice Department's civil division, advanced an argument the administration only recently has begun to make.

Scheduled to hear Tuesday's arguments were 5th Circuit Judges Carolyn Dineen King, Jennifer Walker Elrod and Kurt Engelhardt.

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.

Henneke rejected arguments that Congress never meant to repeal the ACA in its entirety when it zeroed out the individual mandate tax penalty in 2017.

"The individual mandate is the centerpiece of Obamacare".

Engelhardt questioned why, after a USA district judge declared the whole ACA unconstitutional, Congress did not pass legislation clarifying what provisions should stay on the books. A GOP plan in Congress to replace the ACA, the American Health Care Act, did not find enough support.

Tuesday's arguments are the latest in a lawsuit filed by Republican officials in 18 states, led by the Texas Attorney General's Office.

Such political currents would likely draw the notice of Roberts, who has been trying to keep the USA judiciary above the partisan fray. And she appeared highly focused on her court's options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration. The Republican-appointed judges on the panel were skeptical of the argument, though. They often vote along ideological, if not political, lines. The fight may well escalate to the Supreme Court in time to become a political test for the 2020 elections.

Those moves recalled the Obamacare decision that, even seven years later, defines him in the public eye.

Obamacare: Appeals court likely to rule the ACA is unconstitutional