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Opinion | Obamacare’s Precarious Fate


Two federal judges in one of the most conservative appeals courts in the nation appeared ready on Tuesday to fall for the most specious legal challenge that the Affordable Care Act has faced — which is saying something.

The two Republican-appointed judges on the three-judge panel of the United States Court of Appeals for the Fifth Circuit — Jennifer Elrod (appointed by George W. Bush) and Kurt Engelhardt (appointed by President Trump) — seemed to have little patience for the arguments in defense of Obamacare presented by lawyers for the House of Representatives and a group of blue-leaning states. (The third judge on the panel, a Jimmy Carter appointee, remained quiet during the arguments.)

The 2010 health care law is under fire once again because of a ruling by a federal judge in Texas in December, in which he declared the law unconstitutional.

Legal experts across ideologies criticized that decision. The Trump administration, which has long waged war against President Barack Obama’s signature legislative achievement, has more or less embraced the lower court’s ruling.

The case, Texas v. United States, is the third Republican attempt to destroy Obamacare by judicial fiat. Lawmakers haven’t been able to entirely undo the law, and the Supreme Court has upheld it twice.

After Mr. Trump signed in late 2017 the Tax Cuts and Jobs Act — which gutted Obamacare’s individual mandate by eliminating the tax penalty that the health care law imposed on Americans who choose to not buy health insurance — some Republicans devised a legal theory under which an individual mandate without a tax penalty could be rendered unconstitutional, dooming the rest of Obamacare. This includes Obamacare’s marquee (and popular) protections for pre-existing conditions and rules that allow people to stay on their parents’ insurance plans until age 26. After all, the thinking goes, in the Supreme Court’s landmark 2012 ruling upholding the law, the court declared the tax penalty a crucial component holding the statute together.

That’s exactly what the governors and attorneys general challenging the law — all of who hail from red-leaning states — are arguing. For these Obamacare foes, it isn’t enough to just excise the individual mandate from the law. The whole thing must go.

Judges Elrod and Engelhardt appeared receptive to this reasoning on Tuesday. “If you no longer have the tax, why isn’t it unconstitutional?” Judge Elrod asked.

In response to the argument by pro-Obamacare lawyers that Congress intended only to undo the tax penalty — not the entire law — Judge Elrod said: “How do we know that some members of Congress didn’t say: ‘Aha, this is the silver bullet that’s going to undo the A.C.A. . . . So we’re going to vote for this just because we know it will bring it to a halt’?”

“Your Honor, that would be imputing to Congress an intent to create an unconstitutional law,” said Samuel Siegel, a lawyer for the State of California.

The question now is whether the Fifth Circuit agrees. Its ruling is expected in the next several weeks, but the court would be wise to not further legitimize this charade. The health care of millions of people is at stake.


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