A three-judge appellate panel heard augments today by several Republican attorneys general that the Affordable Care Act is unconstitutional, and the two GOP-appointed judges on the panel appeared to have heavy skepticism that the law should be allowed to continue.
A federal appeals court panel grilled Democratic attorneys general on Tuesday about whether Obamacare violates the U.S. Constitution, as it weighs whether to uphold a Texas judge’s ruling striking down the landmark healthcare reform law.
The judges focused on whether the 2010 Affordable Care Act lost its justification after Republican President Donald Trump in 2017 signed a law that eliminated a tax penalty used to enforce the ACA’s mandate that all Americans buy health insurance.
Republicans have repeatedly tried and failed to repeal Obamacare since its 2010 passage. The Justice Department would normally defend a federal law, but the Trump administration has declined to take that position against a challenge by 18 Republican-led states.
“If you no longer have a tax, why isn’t it unconstitutional?” Judge Jennifer Elrod, who was appointed to the 5th Circuit Court of Appeals by Republican President George W. Bush, asked attorneys for the Democratic officials defending the law during a hearing in New Orleans.
A coalition of Democratic state attorneys general led by California’s Xavier Becerra stepped up to defend the law. The U.S. House of Representatives intervened after Democrats won control in November’s elections during which many focused their campaigns on defending Obamacare.
A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans is not expected to decide on Tuesday whether to overturn or uphold the ruling by a federal judge in Texas last year that the entire ACA was unconstitutional.
An appellate ruling declaring Obamacare unconstitutional could prompt an appeal to the U.S. Supreme Court, opening the door for the top court to take up the issue in the midst of the 2020 U.S. presidential election.
Republicans have been trying to destroy the Affordable Care Act for nine years now. Making health care and millions of Trump voters losing health coverage the top issue of 2020 seems like a pretty stupid idea, but Republicans are clearly counting on Democrats to vote to overturn it and surrender to a GOP "replacement" bill rather than risk a loss at SCOTUS, where this will be headed either way.
We'll see what the judges do later this year, and how quickly this case gets to SCOTUS.