The future of the United States's Affordable Care Act (ACA), also known as Obamacare, could be at stake on Tuesday when a group of Democratic-led states and the House of Representatives urge a federal appeals court to overturn a Texas judge's ruling that the U.S. healthcare reform law is unconstitutional.
Two of the three judges on the appellate panelin New Orleans - Jennifer Elrod, a George W. Bush appointee, and Kurt Engelhardt, a President Donald Trump appointee - gave the appearance that they might side with a lower court judge who ruled previous year that the whole law should be struck down. 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. In that case, Obamacare would most likely end up back before the Supreme Court.
Late previous year, a federal district judge in Texas agreed.
Even senior Trump administration officials, including White House economists and Justice Department lawyers, have noted in recent months the success of insurance markets and dismissed the impact of eliminating the penalty.
Now, 20 Republican attorneys general around the country believe they have a case to have the law ruled unconstitutional. "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.
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. But Chief Justice John Roberts, joining four liberal justices, said Congress did have the power to impose the tax.
In a complicating twist, Justice Department attorneys also argued in papers filed with the court last week that the appeals court could invalidate the health care law only in the 18 red states that are suing. With no fine for those who refuse to buy insurance, they argued that the mandate is now unconstitutional, and since it's a central part of the law, so is the entire ACA.
In 2012, a divided US Supreme Court upheld most of its provisions, including the individual mandate, which requires people to obtain insurance or pay a penalty.
Judge Engelhardt, a Trump appointee, appeared to sympathetic to the Republicans' argument Tuesday, though bemoaned the court's role in refereeing what appeared to be a political dispute over how much of Obamacare should be left intact.
The third judge on the panel, Carolyn Dineen King, appointed in 1979 by President Jimmy Carter, a Democrat, stayed mostly silent during the proceedings, according to several media outlets.
After O'Connor's ruling, however, the administration changed its mind. He has said Congress won't vote on it until after next year's presidential election. Half of Democrats' campaign ads during the midterm elections focused its messaging on health care and the law.
Asked about the court case, Senate Majority Leader Mitch McConnell promised lawmakers would uphold protections for people with pre-existing medical conditions if the health law is struck down.
Trump, who has vowed to protect coverage for preexisting conditions despite supporting the lawsuit to unwind the law, has sent mixed signals about when the party will come up with a new health care proposal. Republicans lost 40 House seats last November, though they gained a few in the Senate.
Democratic leaders in both the Senate and the House on Tuesday warned their Republican colleagues of the costs - both political and financial - the loss of the popular ObamaCare would incur.
Obamacare, formally called the Affordable Care Act, was one of the most consequential healthcare measures in USA history.
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