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ACA Opponents Celebrate as Appellate Judges Appear Receptive to Their Arguments

By John Commins  
   July 09, 2019

Two of the three judges on the panel signaled some sympathy for the arguments raised by the Texas-led group of plaintiff states who challenged the law.

A three-judge panel that heard oral arguments Tuesday afternoon on the legal status of the Affordable Care Act appeared sympathetic to the reasoning that led a lower court to declare all of the sweeping healthcare legislation invalid.

Judges Jennifer Walker Elrod and Kurt Engelhardt, the two judges on the panel who were appointed by Republican presidents, made comments and asked questions that may have signaled a likeliness to agree with at least some of the arguments raised by the Texas-led group of 18 plaintiff states that challenged the law's constitutionality in light of Congress zeroing out the tax penalties tied to the ACA's individual mandate.

However, Engelhardt also questioned why the case that will determine the future of the ACA was being litigated in a courtroom, instead of debated and voted on in Congress.

"There's a political solution here that you, various parties are asking this court to roll up its sleeves and get involved in. Isn't that exactly the point?" Engelhardt said during an exchange with an attorney representing the U.S. House of Representatives. "Isn't that why the Senate isn't here?"

The courts should not become "the taxidermist for every legislative big-game accomplishment that Congress achieves," Engelhardt added.

Listen: Audio of Oral Arguments in ACA Appeal at Fifth Circuit

During a briefing with reporters after the hearing, Robert Henneke, general counsel at the Texas Public Policy Foundation, which represents two Texas men who've joined the plaintiffs, said the judges appear ready to declare the entire ACA invalid and let lawmakers chart a path forward.

"The greater lesson is that the judges today seem very focused on staying consistent with the law and faithful to their job to uphold the Constitution, but not to come in as a super legislative body to just rewrite the Affordable Care Act," Henneke said.

"Where Congress made a mistake [was] in the way that they created the Affordable Care Act and tied everything to the individual mandate," he added.

"Today's job by the court of appeals is to call balls and strikes and constitutionality and leave it to the Congress and to our state leadership to actually address healthcare policy that will restore choices, doctors, decreased costs, improve access to care for the millions of Americans like my clients that have been injured by the Affordable Care Act," he said.

In rebuttal, a California-led coalition of 20 intervening states and the District of Columbia, recently joined by the U.S. House of Representatives, told the appellate panel that U.S. District Judge Reed O'Connor's ruling was flawed.  

"The entire Affordable Care Act can cooperate without the individual mandate," California Solicitor General Samuel Siegel told the court, according to CNN, adding that if Congress had wanted to eliminate the law in its entirety it could have done so.

Although a decision by the appellate court could take months, the ruling—whatever the outcome—is expected to be appealed to the U.S. Supreme Court, which could hear arguments and rule on the case amid the 2020 presidential campaign.

Henneke rejected arguments that Congress never intended to repeal the ACA in its entirety when it zeroed out the individual mandate tax penalty in 2017.

"What they were doing was just passing a tax bill," he told reporters. "So, I disagree with the argument that Congress was purposefully addressing the substantive aspects of the Affordable Care Act," he said. "But it just so happens, the consequences of their actions is what has left Obamacare here today as unconstitutional."

Beyond the questions surrounding the legal status of the ACA, the intervening states said a judicial nullification of the law would wreak chaos for the nation's healthcare system.

They said that more than 20 million people would lose healthcare coverage gained through the Medicaid expansion and Marketplace individual policies created under the ACA, and that important patient projections, such as a ban on restricting coverage for pre-existing conditions, would be eliminated with the law's demise.

The appellate court also considered the legal standing of the intervening states, who had argued that, if O'Connor's ruling was allowed to stand, it would eliminate the Medicaid expansion under the ACA and would cost them about $418 million over a decade.

The third judge on the panel, Carolyn Dineen King, appointed in 1979 by President Jimmy Carter, a Democrat, kept quiet throughout the proceedings.

HealthLeaders editor Jack O'Brien contributed to this report.

“There is a political solution here.”

John Commins is a content specialist and online news editor for HealthLeaders, a Simplify Compliance brand.


Judge Kurt Engelhardt questioned why the issues raised in the case are being litigated in a courtroom instead of debated and voted on in Congress.

Although a decision by the appellate court could take months, the ruling—whatever the outcome—is expected to be appealed to the U.S. Supreme Court, which could hear arguments and rule on the case amid the 2020 presidential campaign.

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