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.
“Why does Congress want the judiciary to be a taxidermist for every big-game legislative accomplishment it achieves?” the rookie on the panel, Kurt Engelhardt, an appointee of President Donald Trump, asked the lawyer representing the U.S. House of Representatives during a lively hearing in New Orleans.
Another judge didn’t understand how the federal government thinks it can administer a law it believes is completely unconstitutional in just parts of the country.
“You want to strike it down, only in certain states, in its entirety?” U.S. Circuit Judge Jennifer Elrod, appointed by President George W. Bush, asked a lawyer for the Justice Department.
“A lot of this stuff has to be sorted out, and it’s complicated,” replied the attorney, August Flentje, as he shifted uncomfortably. “We haven’t gone down that road yet.”
The third judge, Carolyn King, a Jimmy Carter appointee, didn’t utter a word during a 90-minute hearing that’s supposed to help the court decide whether President Barack Obama’s signature health-care law, the Affordable Care Act, lives or dies. The panel didn’t issue a ruling Tuesday.
Texas and 18 other mostly Republican states asked the court to do what Trump and a GOP-controlled Congress couldn’t in 2017 — kill Obamacare.
Access to health care for millions of Americans through the Affordable Care Act hangs on the court’s decision. The fight may well escalate to the Supreme Court in time to become a political test for the 2020 elections.
California and 19 other mostly Democratic states, along with the District of Columbia and the U.S. House of Representatives, now controlled by Democrats, jumped in to defend the law after the Trump administration decided to side with the red states that want it struck down.
Started in 2014
More than 20 million Americans obtained health coverage starting in 2014 through the ACA’s independent insurance exchanges, federal subsidies or expanded Medicaid. The exchanges must take all applicants and charge them the same rate, regardless of pre-existing health conditions. Citizens who chose not to buy health insurance had to pay a penalty, a provision the U.S. Supreme Court upheld in 2012 as lawful under Congress’s taxing authority.
With Trump’s encouragement, Republican lawmakers repeatedly tried to repeal the law, ultimately failing in July 2017 when the late John McCain, the maverick from Arizona, made a thumbs-down gesture on the Senate floor. The GOP succeeded only in eliminating the penalty later that year, leaving the rest of the ACA intact.
A judge in Fort Worth, Texas, concluded in December that wiping out the penalty undermined the ACA’s constitutional basis and invalidated the whole law. Although the federal government initially said some parts of the ACA might be worth keeping, the Trump administration shifted in March and said it would no longer defend any part of Obamacare in court.
Engelhardt voiced frustration that lawmakers haven’t resolved the situation on their own.
“Can’t they do this tomorrow?” asked the former Louisiana trial judge, who joined the appeals court last year. “There’s a political solution and you’re asking this court to roll up its sleeves and get involved in it.”
Samuel Siegel, the lawyer representing California, responded that it isn’t the appeals court’s job “to do what Congress repeatedly refused to do, which is to repeal the Affordable Care Act.”
Douglas Letter, a lawyer for the House of Representatives, told the judges there’s no need for Congress to take further action if lawmakers believe the law is already clear. When Congress eliminated the tax penalty for not buying health insurance, but left the rest of Obamacare intact, Congress created the version of Obamacare it wanted, he said.
If one part of the ACA is subsequently declared unlawful, that’s no reason to toss out the entire law, Letter told the panel. Instead, the House’s lawyer said, it is the judges’ responsibility to “save everything you can unless it is evident Congress didn’t mean that and would’ve preferred no statute.”
Texas Solicitor General Kyle Hawkins warned the judges that “congressional intent is not monolithic, and it’s a very difficult and dangerous game” to try to second-guess what Congress really meant.
“I’m not in a position to psychoanalyze Congress, and this court is not in a position to engage in psychoanalytical tasks,” Hawkins said.
While the red states and the Trump administration are technically adversaries in this challenge, their lawyers sat at the same table during the hearing and told the judges they both think Obamacare is unlawful. However, Hawkins took pains to highlight inconsistencies that have developed in the Trump administration’s position, which left Flentje, the Justice Department lawyer, occasionally struggling to explain himself.
When the challenge was in the lower court, the Justice Department said it didn’t need a specific judicial order halting the ACA because the federal government would treat the judge’s decision as a nationwide injunction. Later, the Trump administration shifted gears and said it will keep enforcing Obamacare until a court orders it to stop. And last week, the administration shifted positions again to insist that lower-judge’s order only blocks Obamacare in states that sued to overturn it.
Several times, Flentje seemed to almost beg the judges to resolve the impasse between the White House and Congress, as the Supreme Court did when Obama refused to defend the federal law denying recognition to same-sex marriages.
“The courts then said this was a reasonable way to let the judicial branch have the final say,” Flentje said. “The Supreme Court discussed this conundrum and said it’s a reasonable way, especially when we have a complicated statute that covers a lot of ground.”
The case is Texas v. U.S., 19-10011, U.S. Court of Appeals for the Fifth Circuit (New Orleans).
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