Judges Frustrated with Failure of Congress to Settle Obamacare Issues


Attorneys for states hoping to save President Barack Obama's health care law have been hit with some intense and occasionally skeptical questioning from appellate judges in a New Orleans federal court.

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. But he became wary of voiding a significant part of the law that was years in the making and reconsidered. Traditionally, an administration - even one that did not work to pass the law in question - defends existing law in court.

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. The state argues that Congress' removal past year of the ACA's individual mandate has transformed the legality of the entire law.

Judge Jennifer Walker Elrod said as she pressed attorney Samuel Siegel, who is representing 20 Democrat-led states defending the ACA.

"There's another way to read" the 2012 Roberts' decision, insisted Douglas Letter, counsel for the US House. He argued that while the tax penalty is now zero dollars, people still have the choice to either purchase insurance, or not.

Senate Majority Leader Mitch McConnell said he expects the challenge to reach the Supreme Court. Nor did the panel members say when they expect to issue an opinion, though the court says in general that its judges will try to do so within a few months.

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. They have tried to cut Medicare and Medicaid, privatize health care for veterans and remove the guardrails that protect consumers from insurance companies.

The Trump administration initially argued that, based on the 2017 tax law change, only the individual mandate and two related provisions tied to protections for people pre-existing health conditions should be invalidated. But there likely will be no immediate impact on health coverage: The federal government will continue to enforce the law pending "final resolution of this case", August Flentje, a Justice Department lawyer, said Tuesday.

Despite such pointed questioning, the hearing did not clearly foreshadow how the panel will rule in the appeal of a December opinion by a federal district judge in Texas who said the entire ACA is unconstitutional. The third and only Democratic appointee on the panel, Judge Carolyn Dineen King, a former chief judge of the court who was appointed by President Jimmy Carter, was silent during the 90-minute-plus hearing.

The ultimate outcome of the lawsuit will affect millions of Americans, and the repeal of the nine-year-old law could leave up to 32 million people without health insurance by 2026, according to a Congressional Budget Office report from 2017 about the effects of repealing the ACA.

Elrod asserted that linking the individual mandate to a "revenue-producing" measure was "essential". As per the Texas preliminary court, this activity "propels the end" that the individual order stops to be a protected exercise of Congress' exhausting force in light of the fact that the related budgetary punishment never again "creates probably some income" for the bureaucratic government.1 The preliminary court proceeded to find that, since Congress called the individual command "fundamental" when establishing the ACA in 2010, the whole law must be negated. Engelhardt questioned whether the judiciary should be "taxidermist for every legislative big-game accomplishment that Congress achieves".