Attorneys general from both sides of the aisle debated the constitutionality of the Affordable Care Act.
Three judges from the United States Court of Appeals for the Fifth Circuit in New Orleans heard from attorneys general regarding Texas v. United States Tuesday afternoon, a case with the potential to upend the Affordable Care Act (ACA).
The lawsuit has pitted the U.S. House of Representatives and a California-led coalition of 20 states, joined by the District of Columbia, against a Texas-led coalition of 21 states about the validity of the ACA.
In December, U.S. District Judge Reed O'Connor declared the landmark healthcare legislation unconstitutional, citing the repeal of the ACA's individual mandate as a result of the 2017 tax reform bill.
In March, the Department of Justice (DOJ) sided with the Texas-led coalition in arguing that the entire law should fall, a shift from its partial defense of the ACA after O'Connor's ruling.
The oral arguments began at 1 p.m. and consisted of 45 minutes for each side, followed by rebuttals that concluded around 2:45 p.m.
Below are six notable quotes from the oral arguments:
How Congress passed the tax bill in 2017 and stripped away the individual mandate
Judge Kurt Engelhardt: "But weren't [Congress] limited in what they could do with regard to the tax bill in 2017?"
Sam Siegel, associate deputy solicitor general of California: "That may be true your honor but what's relevant here is that the Congress made the individual mandate unenforceable. There's no difference between the mandate tax and the mandate itself."
Engelhardt: "But surely word had reached Congress from the Supreme Court building that the NFIB opinion had been rendered. Surely Congress knew that the 'linchpin' that [Chief] Justice [John] Roberts had described had been adjusted. Is that not correct?"
The issue of severability
Judge Jennifer Elrod: "Can we talk a little bit more about the merits, why is a command not a command if the CBO says it is for some people? Indeed, [William] Blackstone himself said that people follow the law just to follow the law, because they want to be good citizens, without regard as to whether there's a penalty. Why isn't a command a command?"
Siegel: "In NFIB, the court said this provision [individual mandate], the word 'shall' doesn't have to be read as a command to buy health insurance.
Elrod: "Right, because it was in conjunction with the tax. But Chief Justice [John Roberts] also said the most natural reading of the provision was as a command. So if you no longer have the tax, why isn't it unconstitutional?"
- Standing questioned
Doug Letter, general counsel of the U.S. House of Representatives: "28 USA 350 D says that the executive must notify both houses of Congress, when it's going to quit, let down the American people, and not defend a statue like this, even though there's obviously valid arguments to be made in support of it."
Elrod: "If a co equal branches of government says something is unconstitutional, haven't they actually taken an oath, that they won't be trying to uphold constant unconstitutional things unless you believe judicial supremacy is so vast that an entire branch isn't even allowed to have its own opinion at all?"
Letter: "Good point, your honor."
Elrod: "But do you agree with what I just said or do you disagree?"
Letter: "I'm going to agree and point out the DOJ has for many, many decades had the position that it will defend acts of Congress if there's a reasonable defense for them. And here, the DOJ clearly is a reasonable arguing committed, I assume your honors, whether you agree or disagree ultimately with what we say we've made a reasonable argument. The DOJ has said, 'Yeah, but we wish it were otherwise.'"
Listen: Audio of Oral Arguments in ACA Appeal at Fifth Circuit
- GOP responds to inseverability clause
Kyle Hawkins, solicitor general of Texas: "I would further submit that if Congress believed that the inseparability clause was no longer appropriate, if it believed that the mandate was no longer necessary to the law, it had a duty to excise that statute from the law. But it didn't do that. And it is not this court's role to act as legislature and cut sections out of a statute. The Congress has had the opportunity to amend, but has not done so simply because the court thinks, as my friends on the other side suggest, that they can guess as to what various Congress people were actually thinking about."
- Dispute over Roberts' opinion in NFIB case
Hawkins: "First and foremost, I think that the other side, particularly my friend Mr. Letter, is seriously misreading the Supreme Court's decision in NFIB. [The case] holds that the individual mandate is unlawful. It holds that [the statute] is best read as a command to buy insurance. And it held that that command, despite being unlawful, can only be saved if it is fairly possible to read the law as a tax. It follows that if the law cannot fairly be read as a tax, then the original holding stands and the mandate is unlawful."
- Remedies for the injured parties
Hawkins: "The only other thing I'd say on remedy is that a point we made in our brief where we differ with the plaintiffs somewhat is that the declaratory remedy should also be limited to the injuries that are established by the plaintiffs. Again, we think this is more of a technical point, it's a very important institutional point for the government, that district court judgments should be limited to the dispute between the parties and the injuries that established standing for the plaintiffs. We don't think that needs to be sorted out which provisions the ACA would be covered and not covered, because that was not addressed in the district court. It would require an assessment of injuries to Texas, which the district court didn't conduct. And it might all be obviated, if there is a precedential ruling from a higher court that resolves this, these kinds of issues as a matter of precedent."
Notably, Judge Carolyn Dineen King did not speak or ask a question during the oral arguments.
Jack O'Brien is the finance editor at HealthLeaders, a Simplify Compliance brand.