Ongoing challenge to Affordable Care Act could add to risks for Collins

Kenny Tucker
July 12, 2019

The future of the United States's Affordable Care Act (ACA), also known as Obamacare, could be at stake on Tuesday when a group of Democratic-led states and the House of Representatives urge a federal appeals court to overturn a Texas judge's ruling that the USA healthcare reform law is unconstitutional.

US District Judge Reed O'Connor in Fort Worth, Texas, agreed in December 2018, saying the individual mandate was unconstitutional because it no longer triggered a tax.

California's attorney general represents a coalition of mostly Democratic-led states and the District of Columbia seeking to overturn O'Connor's ruling and uphold the law.

A three-judge federal appeals court is set this week to hear oral arguments in a case that will determine the future of the Affordable Care Act. The argument that the mandate's tax penalty was a linchpin for the entire act is risible - it has nothing to do with the Medicaid expansion, the premium subsidies for lower-income Americans, the creation of state insurance-buying marketplaces, or many other important provisions of the law.

In passing the tax bill that eliminated the ACA's tax penalty but nothing else, Congress "made the judgment that it wanted the insurance reforms and the rest of the ACA to remain even in the absence of an enforceable insurance mandate", wrote law professors Jonathan Adler, Nicholas Bagley, Abbe Gluck and Ilya Somin.

"They say because we think the individual mandate is unconstitutional, every other part of this law can be struck down".

The Trump administration changed its position after initially deciding not to support the effort by several Republican state attorneys general to throw out the whole health law.

The U.S. Supreme Court is expected to eventually consider the matter. Caroline Mello Roberson, state director of the National Abortion and Reproductive Rights Action League in Nevada, said if the ACA is overturned, many people would suffer.

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For almost two hours in a New Orleans courtroom, the judges - two Republican appointees and one by Democratic President Jimmy Carter - voiced skepticism about arguments that the individual mandate is now essentially just a toothless government suggestion. The case is likely headed to the Supreme Court, where the same five-justice majority that has twice voted to uphold the law - in 2012 and 2015 - remains in place.

Furthermore, the plaintiffs here argue that the Affordable Care Act can not function without the penalty. "Those without insurance coverage forgo basic medical care, making them more hard to treat when they do seek care". The New York Times notes the two judges appointed by Republican presidents - Jennifer Elrod and Kurt Engelhardt - were vocal throughout the hearing, while the third judge, Carolyn King, who was appointed by former President Jimmy Carter, was silent.

Gov. Greg Abbott of Texas, one of the lead states fighting the law, has said his government is ready with "replacement healthcare insurance" that includes coverage for pre-existing conditions.

Texas Attorney General Ken Paxton, who is leading the Republican coalition, called the individual mandate the "centerpiece" of the health care law.

"President Trump and Republicans are playing a very unsafe game with people's lives", Senate Minority Leader Chuck Schumer told reporters on a conference call Monday.

"If the Trump administration position prevails and the entire Affordable Care Act is struck down, there will be catastrophic implications", said committee Chairman Rep. Elijah Cummings, D-Maryland. The fight may well escalate to the Supreme Court in time to become a political test for the 2020 elections.

So Trump and other Republicans took a piecemeal approach to dismantling it.

The U.S. appeals court judges tasked with deciding the fate of the hot potato known as Obamacare had some choice words Tuesday for Congress and the Trump administration.

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