Latest 'Obamacare' Court Battle Plays out in New Orleans

Henrietta Brewer
July 10, 2019

A victory for plaintiffs assures that health care will once again be front and center on the campaign trail as Trump seeks reelection next year.

Now, 20 Republican attorneys general around the country believe they have a case to have the law ruled unconstitutional.

"You want to strike it down, only in certain states, in its entirety?" Judge Jennifer Elrod, who was appointed by Republican President George W. Bush, asked during Tuesday's hearing on a sweltering day in New Orleans.

"A lot of this stuff has to be sorted out, and it's complicated", replied the attorney, August Flentje, as he shifted uncomfortably.

"According to a 2017 analysis done by the Center for American Progress, in the 8th District of New Jersey, an estimated 339,700 residents have pre-existing conditions and are at risk of being denied, dropped, or charged more for coverage if this lawsuit succeeds in invalidating the Affordable Care Act".

"We never heard anything about any Republican plan", said state Rep. A GOP plan in Congress to replace the ACA, the American Health Care Act, did not find enough support. The fight may well escalate to the Supreme Court in time to become a political test for the 2020 elections.

Lawyers for California and other Democratic-led states, along with the Democratic-run US House of Representatives, countered on Tuesday that even without a tax penalty, the individual mandate remains constitutional, as does the entire ACA.


The ultimate outcome of Tuesday's case 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.

At issue in a hearing scheduled Tuesday by a three-judge panel of the 5th U.S. Circuit Court of Appeals is whether Congress effectively rendered it unconstitutional in 2017 when it zeroed out the tax imposed on those who chose not to buy insurance. Obamacare has come under frequent fire since it was passed in 2010.

Indeed, there is little evidence that eliminating the penalty has jeopardized the health care law's broader program for expanding health coverage.

In December 2018, U.S. District Judge Reed O'Connor in Fort Worth, Texas, agreed.

In an unusual break with tradition, the Trump administration announced about a year ago that it would not defend the ACA in court.

A third judge - Carolyn Dineen King, appointed by President Jimmy Carter -did not ask any questions.

"There's a political solution here that you and various parties are asking us to roll up our sleeves and get involved in", Engelhardt said.


He said he is co-sponsoring a resolution to allow the Senate legal counsel to intervene in the lawsuit, to defend the Affordable Care Act.

If one part of the ACA is subsequently declared unlawful, that's no reason to toss out the entire law, Letter told the panel.

Texas Solicitor General Kyle Hawkins warned the judges that "congressional intent is not monolithic, and it's a very hard and risky game" to try to second-guess what Congress really meant.

Congressional intent can best be divined by reading the text of the law itself, Hawkins said.

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.

Not this time. And it is still unclear exactly what the administration's position is on the lawsuit. Engelhardt suggested that if the health care law needs to be revised, lawmakers on Capitol Hill should do it, not the courts. "The issue is complicated and would need to be sorted out", he said.

Senate Majority Leader Mitch McConnell said he expects the challenge to reach the Supreme Court.


The case is Texas v. U.S., 19-10011, U.S. Court of Appeals for the Fifth Circuit (New Orleans).

Other reports by iNewsToday

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