A panel of federal judges in New Orleans sharply questioned attorneys defending the Affordable Care Act on Tuesday, increasing the chances that the 5th U.S. Circuit Court of Appeals may throw out at least part of the 2010 law, often called Obamacare.
Scheduled to hear Tuesday's arguments are 5th Circuit Judges Carolyn Dineen King, Jennifer Walker Elrod and Kurt Engelhardt - two of whom are Republicans.
At stake in the panel's decision is insurance coverage for millions of Americans who gained it under the law through expansions of Medicaid in three dozen states and a new insurance marketplace, as well as consumer protections for most people with private health plans. Whichever way it rules, the decision could prompt an appeal to the U.S. Supreme Court, potentially setting up a major legal battle over healthcare for tens of millions of Americans in the midst of the 2020 U.S. presidential election.
On Tuesday, attorneys for California and the House of Representatives, which also has joined the suit to defend the law, urged the appellate court to preserve the law, in part because there is no evidence that Congress meant to repeal the whole law when it eliminated the mandate penalty in 2017.
Kyle Hawkins, solicitor general for the Texas attorney general who initiated the lawsuit in February 2018, countered: "I am not in position to psychoanalyze Congress. what Congress intended".
A coalition of Democratic state attorneys general led by California's Xavier Becerra stepped up to defend the signature achievement of Trump's Democratic predecessor, Barack Obama.
Neither side advocates taxidermy; both sides take an absolute position on severability. United States is likely bound for the Supreme Court where, despite recent changes among the nine, the majority that previously upheld the law - Roberts and four liberal justices - is still there.
"The Affordable Care Act's individual mandate was a bad policy experiment that fell short of its goals", Duffy said in a statement to NewsChannel 7 on Tuesday. But it argues on appeal the law's balance must be struck down.
The case's outsize significance was evident from the television crews outside the marbled courthouse in downtown New Orleans and the lines standing in the heat, hoping for a seat in the courtroom, as well as from the broadsides issued from Washington in the hours before the hearing.
The lawsuit threatens not only to end protections for pre-existing conditions but "could create a striking blow to the entirety of the Affordable Care Act", said Antoinette Kraus, executive director of the Pennsylvania Health Access Network, a patient advocacy organization.
"Legally it might be appealed to the Supreme Court which may or may not take it up".
Last December, a USA district court judge agreed with the Republican challengers and ruled that because the tax penalty is now zero, the entire health care law is unconstitutional. "Why does Congress want the Article III Judiciary to become the taxidermist for every legislative big game accomplishment that Congress achieves?"
The Justice Department initially argued the mandate was unconstitutional but most of Obamacare could be severed from it. The outcome will apply to all states, but is expected to be appealed to the US Supreme Court.
"Today's arguments seem to have gone very, very well", he said.
"The courts then said this was a reasonable way to let the judicial branch have the final say", Flentje said.
Josh Blackman, a professor at South Texas College of Law who attended arguments, said he expects the court to remand the case back to the lower court to figure out which parts of Obamacare harm the plaintiffs and should be blocked. 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. "Our state coalition made it clear: on top of risking lives, gutting the law would sow chaos in our entire healthcare system".
Texas and 18 other mostly Republican states asked the court to do what Trump and a GOP-controlled Congress couldn't in 2017 - kill Obamacare. The U.S. House of Representatives intervened after Democrats won control in November's elections during which many focused their campaigns on defending Obamacare.
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